J-A11040-20

2020 PA Super 148

O.G.

v.

A.B. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1952 MDA 2019

Appeal from the Order Entered November 6, 2019

in the Court of Common Pleas of Adams County Civil Division at No(s): 

2019-SU-0000477

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JUNE 23, 2020

A.B. (“Mother”) appeals from the order entered November 6, 2019, in 

the Court of Common Pleas of Adams County, which awarded her and O.G. 

(“Father”) shared legal and physical custody of their daughters, N.G., born in 

April 2011, and Y.G., born in February 2013 (collectively, “the Children”). We 

vacate the lower court’s order and remand for further proceedings consistent 

with this Opinion.

Mother and Father are former spouses who separated in 2015 and 

divorced in 2017. Notes of Testimony (“N.T.”), 9/30/19, at 99, 105-106, 190.

Prior to these proceedings, Mother and Father had an informal custody 

agreement in which Mother exercised primary physical custody and Father 

exercised partial physical custody. N.T., 10/24/19, at 302-303. It appears 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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from the record that Father had partial physical custody as often as ten or 

eleven overnight visits each month. Id.

In March 2019, Mother began to withhold custody of the Children from 

Father. Mother claimed Father was not helping with his share of parental 

duties, such as driving the Children to school. Mother expressed concern for 

the Children’s safety while they were in Father’s care. N.T., 9/30/19, at 111-

12; N.T., 10/24/19, at 303, 318. On April 30, 2019, Father filed a complaint 

requesting shared legal and physical custody. N.T., 9/30/19, at 112. On May 

20, 2019, Mother filed an answer, new matter, and counterclaim, requesting

primary physical custody and shared legal custody.

On May 22, 2019, the trial court entered an interim order, awarding the 

parties shared legal custody. While Mother retained primary physical custody, 

the trial court gave Father partial physical custody on alternating weekends 

from Thursday at 7:30 p.m. until Sunday at 7:30 p.m., and at other times by 

mutual agreement of the parties. 

On September 30, 2019 and October 24, 2019, the trial court held 

hearings, which began with in camera interviews of the Children. The 

testimony of the Children was subsequently sealed. Both Children spoke 

positively about both Mother and Father and indicated that they love spending 

time with both parents and “credibly articulated positive experiences in both 

households.” Trial Court Opinion (T.C.O.), 11/6/19, at 4. N.G., who was eight 

years old at that time, agreed that both Mother and Father performed parental 

duties. N.G. expressed a desire to spend equal time with her parents. 
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Similarly, Y.G., who was six years old at that time, agreed that she would like 

to spend more time with Father and added that she loves her paternal 

grandmother. Id.; T.C.O., 12/27/19, at 5-6 (citing Sealed Child In Camera

Interviews, September 30, 2019)).

Both parents also testified at the hearings.

1 Father focused his 

testimony on his performance of parental duties and on asserting why he 

believed that an award of shared physical custody would be in the Children’s 

best interests. Father testified that he prepares the Children’s meals, washes 

their clothes, reads with them, helps them with homework, goes on bike rides 

with them, attends their extracurricular activities, and takes them on trips.

N.T., 9/30/19, at 113-18, 126-38, 176; N.T., 10/24/19, at 346-47. Father 

also contended that shared physical custody would allow the Children to spend 

more time with their paternal grandmother and learn about their “roots.” N.T., 

9/30/19, at 122; N.T., 10/24/19, at 352. Father also contended that he could 

more aptly address the Children’s behavioral issues and would focus more on 

their intellectual development than Mother does. N.T., 9/30/19, at 122-23; 

N.T., 10/24/19, at 352-53.

In an effort to rebut Father’s request for shared physical custody, Mother 

criticized Father’s parenting skills and judgment. Mother presented evidence 

that Father was convicted of two summary offenses after an incident in 

January 2016, during which he left the Children unattended in his car. See

____________________________________________

1 Father also presented the testimony of the paternal grandmother, while 

Mother presented the testimony of her fiancé.
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Exhibits M6, M7. Mother expressed concern that Father rents out a room in 

his house but does not provide her with any background information regarding 

his tenants. In addition, Mother asserted that Father takes the Children with 

him while he performs his second, part-time job as a rideshare driver and 

food-delivery person.

2 N.T., 9/30/19, at 110; N.T., 10/24/19, at 281, 318. 

Mother and Father also presented testimony regarding Mother’s 

proposal to travel with the Children to Russia. Mother was born in Russia and 

testified that she hoped to take the Children there to visit her parents, brother, 

grandparents, and other extended family. N.T., 9/30/19, at 207; N.T., 

10/24/19, at 293. However, Mother reported that Father was unwilling to 

provide her with the Children’s Russian passports, which the parties indicate 

are now expired. N.T., 9/30/19, at 211. Father testified that he was wary of 

letting Mother take the Children to Russia because she had once threatened 

to never let him see the Children again. Id. at 169. He expressed concern 

that Mother would take the Children to Russia and then remain there. Id.

Mother denied that she had threatened to take the Children to Russia and 

never return. Id. at 210.

____________________________________________

2 Mother presented numerous text messages to show Father’s allegedly hostile 

and uncooperative attitude toward her. Mother also claimed Father separates

the Children during his custody time by sending one of them to visit their 

paternal grandmother. See Exhibits M18-M98; N.T., 10/24/19, at 269-270, 

305. Mother testified that Father’s habit of separating the Children “creates 

the fights and disagreements between the girls. They [are] being treated 

differently, and [they] com[e] back upset about what’s happening while they 

are in his care . . . .” N.T., 10/24/19, at 305.
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On November 6, 2019, the trial court entered an Order and Opinion 

awarding Mother and Father shared legal and physical custody of the Children.

The trial court provided that the parties would share physical custody pursuant 

to a “2-2-3” schedule.

3

 T.C.O., 11/6/19, at 5.

Importantly, the trial court also directed each parent to provide the 

other parent with the name and date of birth of any new adult household 

members living in their residence “so that the other parent can conduct a 

background check.” Order, 11/6/19, at 6. In addition, the trial court 

prohibited Father from engaging in any part-time work during his custody time

and provided that neither parent could travel with the Children outside the 

continental United States without the written consent of the other parent. 

The trial court thoroughly analyzed the factors enumerated at 23 

Pa.C.S.A. § 5328(a). While the trial court acknowledged that both parents 

contribute to their highly contentious relationship, the court also agreed that 

Mother had expressed valid concerns regarding the Children’s safety based on

Father’s failure to sufficiently investigate the backgrounds of his tenants, and 

Father’s willingness to bring the Children along with him while performing his

part-time work. T.C.O., 11/6/19, at 2-6. 

____________________________________________

3 The trial court found that a “2-2-3” custody arrangement would work best 

with Father’s work schedule as Father has time off on alternating Mondays 

and Tuesdays, alternating Wednesdays and Thursdays, and alternating 

weekends. T.C.O., 11/6/19, at 5.
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However, the trial court did not believe that these issues would outweigh

the benefits the Children would receive from a shared physical custody 

schedule. The trial court summarized its conclusions as follows:

. . . [A]fter consideration of the above factors, Father has met his 

burden of proof that a schedule of shared physical custody is in 

the Children’s best interest at this time. Father has demonstrated 

that he is available to spend time with the Children during the time 

he is requesting. Both parents are equally capable of caring for 

the Children, meeting their needs and getting them to school on 

time. We grant Mother’s request for specific language to be placed 

in the Order regarding background checks for Father’s 

roommates/tenants. We deny Mother’s request to allow the 

Children to travel to Russia, or any other foreign country, unless 

both parties expressly consent in writing. We cannot encourage 

these parents enough to broker a peaceful relationship with one 

another sooner rather than later, otherwise their Children may be 

adversely affected in the long run.

Id. at 7. 

Moreover, the trial court acknowledged that Mother had requested 

authorization to renew the Children’s Russian passports and take the Children 

to Russia to visit her family. The trial court indicated that it “decline[d] to 

grant Mother’s request” as Russia and the United States are not treaty 

partners under the Hague Convention on Civil Aspects of International Child 

Abduction. Opinion, 11/6/19, at 7. The trial court also relied on Father’s 

testimony that Mother had threatened to take the Children from Father and 

never let him see the Children again.
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On December 5, 2019, Mother timely filed a notice of appeal along with 

a concise statement of errors complained of on appeal.4

Mother raises the following claims for our review on appeal:

I. Did the Trial Court abuse discretion, commit error of law and/or 

record lacks/is against the weight of evidence to support findings 

of fact/conclusion of law as to Section 5328(a) factor nos. 1, 3, 4, 

6, 7, 8, 10, 11, 12, 13, 15, and 16, as to fundamental right to 

travel? 

II. Was [the] “presumption” for shared [p]hysical [c]ustody burst 

by Section 5238(a) factors and 4-year de facto and de jure status 

quo? 

III. Did Father lack credibility while Mother is more credible?

IV. Did the Court fail to make a complete record on Section 

5329(c); Father’s tenant/adult household member not available 

to court (Father received court approval for telephone testimony) 

nor was Father’s tenant/adult household member made available 

to home study reporter; Father’s adult household member not 

vetted for Section 5329 charges, convictions, protective orders or 

Children and Youth Services involvement (which is not 

discoverable to Mother), in this jurisdiction or another? 

V. Does high level of conflict between parents preclude equal 

shared physical custody?

Mother’s Brief at 3 (citations omitted) (quoted verbatim).

____________________________________________

4 On February 26, 2020, Mother requested an extension of time to file a reply 

brief and asked this Court to strike Father’s brief, which had not been properly 

served on Mother. Mother further requested that this Court bar Father’s 

counsel from oral argument, refer Father’s counsel to the Disciplinary Board, 

fine Father, and award Mother counsel fees. On February 27, 2020, this Court 

granted Mother additional time to file a reply brief but deferred the remainder 

of her motion to the merits panel. Upon review, we deny the remainder of 

Mother’s requested relief. Even assuming that Father initially failed to serve 

Mother with his appellate brief, Mother obtained a copy of the appellee brief 

and filed her reply brief on time. While we note with displeasure Father’s 

delay in filing his brief, the sanctions Mother suggests are not warranted. 
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The following standard of review applies to custody appeals:

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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted).

“When a trial court orders a form of custody, the best interest of the 

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014) 

(citation omitted). The factors that trial courts must consider when awarding 

custody are set forth at 23 Pa.C.S.A. § 5328(a), as follows:

§ 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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(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. 

(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.A. § 5328(a).

First, Mother challenges the trial court’s findings regarding the Section 

5328(a) factors. Mother contends that she has served as the Children’s 

primary caretaker and criticizes Father by alleging that he does not perform 

parental duties, splits the Children up between himself and the paternal 

grandmother during his custody time, and sends Mother hostile text 

messages. Mother’s Brief at 14-17.

Significantly, Mother also challenges the trial court’s findings regarding 

Section 5328(a)(16) (allowing court to consider “any other relevant factor”)

wherein the trial court prohibited either parent from traveling with the Children 

outside the continental United States without the written consent of the other 

parent. Mother contends that the trial court’s order violates her right to travel 

pursuant to the United States Constitution. 

Mother cites a variety of authorities including international treaties and 

the Russian Constitution, which she suggests are applicable because the 

Children maintain dual Russian citizenship. Id. at 19. Regarding Father’s 

concern that she could take the Children to Russia and remain there, Mother

asserts that there was testimony during the hearing “that [she] proffered a 

bond, with collateral of her house” to ensure the Children’s return. Id. at 18.5

____________________________________________

5 Notably, our review of the record did not reveal any testimony during the 

hearing to support Mother’s claim that she “proffered a bond, with collateral 

of her house” to ensure the Children’s return to the U.S. from Russia. Mother’s 
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The trial court’s findings regarding the Section 5328(a) factors are 

supported by the record. As detailed above, Father testified that he performs 

a variety of parental duties, such as preparing the Children’s meals, washing 

their clothes, attending extracurricular activities, reading with them, helping

with homework, going on bike rides with them, and taking them on trips. N.T., 

9/30/19, at 113-18, 126-38, 176; N.T., 10/24/19, at 346-47. The Children

corroborated Father’s testimony during their in camera interviews. Based on 

this evidence, it was within the trial court’s discretion to conclude that Father 

is equally capable of caring for the Children and that a shared physical custody 

schedule would be in their best interests. See V.B., 55 A.3d at 1197.

In addition, we discern no basis upon which to disturb the trial court’s 

direction that neither parent may travel with the Children outside the 

continental United States without the written consent of the other parent. This 

requirement constitutes a ne exeat clause, which is defined as an “equitable 

writ restraining a person from leaving, or removing a child or property from, 

the jurisdiction.” Black’s Law Dictionary (11th ed. 2019). 

The Supreme Court of the United States has specifically held that a

parent's ne exeat right, which it defined as the “authority to consent before 

____________________________________________

Brief at 18. The issue of a bond came up only once during the hearing in a 

question posed by Mother’s counsel to Father during cross-examination. 

Counsel asked Father if he would be comfortable with Mother taking the 

Children to Russia if she “would post a bond of a lot of money, like her house 

as collateral[.]” N.T., 9/30/19, at 170. Father stated that he was not “here

about money,” and counsel did not raise the issue again. Id. 
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the other parent may take a child to another country,” confers on the parent 

a "right of custody" under the Hague Convention on the Civil Aspects of 

International Child Abduction (hereinafter “Hague Convention”). Abbott v.

Abbott, 560 U.S. 1, 5, 130 S. Ct. 1983, 1987, 176 L. Ed. 2d 789 (2010). By 

way of background, the Supreme Court has recognized the following:

The Hague Conference on Private International Law adopted the 

Hague Convention on the Civil Aspects of International Child 

Abduction in 1980. T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11. 

In 1988, the United States ratified the treaty and passed 

implementing legislation, known as the International Child 

Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U.S.C. § 

11601 et seq. See generally Abbott v. Abbott, 560 U.S. 1, 130 

S.Ct. 1983, 1989–1990, 176 L.Ed.2d 78 (2010).

The Convention seeks “to secure the prompt return of children 

wrongfully removed to or retained in any Contracting State” and 

“to ensure that rights of custody and of access under the law of 

one Contracting State are effectively respected in the other 

Contracting States.” Art. 1, S. Treaty Doc. No. 99–11, at 7. Article 

3 of the Convention provides that the “removal or the retention of 

a child is to be considered wrongful” when “it is in breach of rights 

of custody attributed to a person, an institution or any other body, 

either jointly or alone, under the law of the State in which the child 

was habitually resident immediately before the removal or 

retention” and “at the time of removal or retention those rights 

were actually exercised, either jointly or alone, or would have 

been so exercised but for the removal or retention.” Ibid.

Chafin v. Chafin, 568 U.S. 165, 168, 133 S. Ct. 1017, 1021, 185 L. Ed. 2d 1 

(2013) (citation omitted).

The Hague Convention defines “rights of custody” to include “rights

relating to the care of the person of the child and, in particular, the right to

determine the child’s place of residence.” Hague Convention, art. 5. The

Hague Convention also states that rights of custody “may arise in particular
J-A11040-20

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by operation of law or by reason of a judicial or administrative decision, or by

reason of an agreement having legal effect under the law of” the country

where child was “habitually resident” at the time of removal. Hague

Convention, art. 3.

Although Mother claims that the trial court’s inclusion of the ne exeat 

clause violated her fundamental right to travel, she does not distinguish 

interstate travel from international travel. While the Supreme Court has 

recognized that “[t]he constitutional right of interstate travel is virtually

unqualified,” “the ‘right’ of international travel has been considered to be no

more than an aspect of the ‘liberty’ protected by the Due Process Clause of

the Fifth Amendment” and thus, “can be regulated within the bounds of due

process.” Califano v. Aznavorian, 439 U.S. 170, 176, 99 S. Ct. 471, 475, 

58 L. Ed. 2d 435 (1978) (citations omitted).

In this case, the trial court granted Mother and Father shared physical 

and legal custody of the Children. The trial court expressed concern about 

the potential for Mother to abscond with the Children to Russia as Father 

testified that Mother had threatened to never let him see the Children again, 

Mother withheld the Children from Father in the past, and the parties have 

great difficulty cooperating with each other.

Based on these circumstances, it was within the trial court’s discretion 

to include the ne exeat clause to instruct both parents not to take the Children 

out of the United States without consent of the other parent. Mother cites to

no authority to support her position that this practice is unconstitutional. 
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Mother also suggests that the trial court’s decision can be construed as 

a refusal to grant Mother’s request to renew the Children’s Russian passports. 

This Court was presented with a similar question in Nagle v. Nagle, 871 A.2d 

832, 836 (Pa.Super. 2005), in which the father appealed the trial court’s

decision to order the parties to obtain dual citizenship and dual passports for 

their children. This Court held that the issue of obtaining passports for the 

parties’ children was similar to a party’s request for relocation, in which the 

trial court is permitted to act based on the best interest of the child. Id. This 

Court upheld the trial court’s decision that dual citizenship and dual passports 

were in the best interests of the children and agreed with its finding that there 

was no merit to the father’s claim that the children’s mother was a flight risk. 

Id. at 838-39. This Court also indicated that its decision directing the parties 

to seek to obtain the Children’s passports did not affect the parents’ legal 

rights with regard to their children. Id.

The record is undisputed that the Children are dual citizens of Russia, 

the Children’s Russian passports are expired, and the Children do not have 

U.S. passports. N.T., 10/24/19, at 361-62. Mother’s parents, grandparents, 

brother, and extended family all live in Russia; Mother shared that she was 

having difficulty obtaining a visa for her mother to come to the United States. 

N.T., 9/30/19, at 264-66. The trial court set forth its rationale in its Rule 

1925(a) opinion as follows:

In the context of factor 16, we briefly discussed the narrow and 

discrete issue of Mother’s request to renew the [C]hildren’s

Russian passports and take the [C]hildren to visit Mother’s 
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extended family in the Russian Federation. Father objected to 

Mother’s request. He testified that Mother verbally threatened to 

take the [C]hildren to Russia and never return. Mother denied 

making this statement. Father was born and raised in Ukraine. 

Mother was born and raised in the Russian Federation. The 

[C]hildren are dual citizens of the Russian Federation and the 

United States of America. We did not alter the [C]hildren’s 

citizenship status. We did not affect Mother’s ability to travel. We 

limited the [C]hildren’s ability to travel to the Russian Federation 

absent an express written agreement of both parents. There were 

no alternative proposals proffered to the court, such as a proposed 

travel order with specific safeguards. Our decision was made upon 

evidence presented. We also noted our concern that the Russian 

Federation and the United States are not treaty partners under 

the Hague Convention on the Civil Aspects of International Child 

Abduction. Furthermore, Mother indicated that her travel plans 

are speculative at this time and she is currently not able to afford 

to make this trip. Mother did not demonstrate how granting her 

request would be in the [C]hildren’s best interest at this time, 

particularly when Father cited a concern that Mother may withhold 

the [C]hildren.

T.C.O., 12/27/19, at 8-9 (citation omitted) (emphasis in original).

While the trial court concluded that Mother failed to present evidence to 

show that the renewal of the Children’s passports is in their best interest, the 

trial court did not make any factual findings or offer any authority to support 

its claim that its restriction on the renewal of the Children’s passports “did not 

alter the [C]hildren’s citizenship status.” Id. 

As such, we remand and direct the trial court to determine whether its 

restriction on the renewal of the Children’s Russian passports would affect the 

Children’s status as dual citizens of the United States and Russia. If such

restriction would cause a loss of the Children’s dual citizenship, the trial court 

is directed to allow the renewal of the Children’s Russian passports while 
J-A11040-20

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requiring additional safeguards to prohibit those passports from being used 

without prior court approval. 

In her second claim, Mother argues that the “[f]our-year de facto/[t]woyear de jure status quo of primary physical custody to Mother/ partial physical 

[custody] to Father should not have been ‘burst’ nor ‘modified.’” Mother’s 

Brief at 22. Mother appears to argue that she exercised primary physical 

custody of the Children in the past, and that the trial court abused its 

discretion by disturbing this prior arrangement. Mother suggests that the trial 

court applied an impermissible presumption in favor of shared physical 

custody. Id. at 23.

The trial court addressed this claim in his Rule 1925(a) opinion:

The alleged status quo custodial arrangement made prior to the 

issuance of our interim order was at Mother’s behest. The 

testimony elicited indicated that Father had substantial partial 

physical custody in 2017 and 2018, and that Mother unilaterally 

restricted his custodial time in the [sic] early 2019, which 

prompted him to file the instant complaint. This is not a case 

where the court is asked to modify a prior adjudication of custody 

and concomitant factors analysis. We are not bound by an interim 

order which was entered prior to a full hearing on the merits of 

the case. Even when a parent is simply asking the court to ratify 

an existing informal schedule, the trial court is still compelled to 

decide which physical custody arrangement is in the [C]hildren’s 

best interest. This decision squarely implicates a consideration of 

all the § 5328(a) best interest factors. In adjudicating the instant 

matter, we did consider the evidence elicited regarding parties’ 

various informal custodial arrangements, along with evidence of 

what occurred after the interim order was entered. We did so 

within the context of the §[]5328[(a)] factors as required. [I]t is 

within the trial court’s purview as the finder of fact to determine 

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

T.C.O., 12/27/19, at 9-10 (citations and quotation marks omitted).
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We agree with the trial court’s analysis. Our custody statute does not 

include a presumption in favor of any particular award of custody. See 23 

Pa.C.S.A. § 5323(a) (“After considering the factors set forth in section 5328 . 

. . the court may award any of the following types of custody if it is in the best 

interest of the child”).

While the trial court could have awarded primary physical custody to 

one of the parents to provide greater stability for the Children, the need for 

stability and continuity is only one factor among many that a court must 

consider when making an award of custody. See 23 Pa.C.S.A. § 5328(a)(4)

(directing that the court consider “[t]he need for stability and continuity in the 

child’s education, family life and community life”). Moreover, the amount of 

weight that a court places on any one factor is almost entirely discretionary.

See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013) (“It is within the 

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

salient and critical in each particular case”). 

In this case, it was within the trial court’s discretion to conclude that

spending an equal amount of time with both Mother and Father would be in 

the Children’s best interests and that the benefits the Children would receive 

by doing so would outweigh any disruption to their stability. See V.B., 55 

A.3d at 1197. Mother does not direct us to anything in the record to show the

trial court applied an impermissible presumption favoring shared physical 

custody. As such, Mother’s second claim does not entitle her to relief.
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Mother’s third claim is that the trial court erred or abused its discretion 

by finding Father’s testimony credible and/or by finding Mother’s testimony 

not credible, and that an “adverse evidence instruction, finding and conclusion 

against Father and in favor of Mother applies.” Mother’s Brief at 24. Mother 

waived this claim by failing to develop it in the argument section of her brief 

with citations to relevant legal authority. See In re M.Z.T.M.W., 163 A.3d 

462, 465 (Pa.Super. 2017) (stating that “this Court will not review a claim 

unless it is developed in the argument section of an appellant’s brief, and 

supported by citations to relevant authority”). 

Moreover, even if Mother had not waived her claim, we would conclude 

that it is meritless. To the extent we can discern the substance of Mother’s 

claim, she appears to be arguing that this Court should reverse the trial court’s 

credibility determinations due to Father’s alleged misrepresentations during 

the proceedings, such as his inaccurate averment in his custody complaint

that he and Mother shared physical custody of the Children equally following

their separation, when in reality he exercised only partial physical custody of 

the Children. Mother’s Brief at 24-25.

As explained above, our case law provides that this Court must defer to 

the trial court’s credibility determinations when the record supports them, as 

it does in this case. See V.B., 55 A.3d at 1197. The trial court was clearly 

aware of the issues Mother raises in her brief, including Father’s averment

that the parties shared physical custody of the Children equally following their 

separation. Father testified that he believed he was exercising equally shared 
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physical custody of the Children in terms of the actual hours that he was 

spending with them, taking into account the time that they were in school or 

with a babysitter. N.T., 9/30/19, at 109-110.

To the extent that Father’s testimony could be characterized as 

inaccurate, it was within the trial court’s discretion to assess Father's 

credibility. Notably, the trial court found that Father’s testimony at the 

hearing was consistent with the averments in his complaint as although Father

did not exercise equally shared physical custody of the Children, he did 

exercise substantial partial physical custody. T.C.O., 12/27/19, at 9-10. We 

conclude that no relief is due.

Fourth, Mother argues that the trial court erred or abused its discretion 

because it did not determine whether Father’s “Section 5329 drug and violence 

charged/convicted, [Protection From Abuse (“PFA”)] abuser tenant/boarder 

posed a threat of harm to children nor make a complete record of same.”

Mother’s Brief at 25. Mother asserts that Father’s current tenant has a 

criminal record in Maryland and that, although he was not convicted of the

charges, “[a]n adverse witness/evidence finding of fact/conclusion against 

Father and in favor of Mother should have been made.” Id. She insists that 

the presence of Father’s tenant by itself should preclude an award of shared 

physical custody. Id. at 26. Mother also contends that the trial court should 

have included a provision in its order directing that Father must supervise 

whenever the Children are in the tenant’s presence. Id. 

Our child custody statute provides as follows, in relevant part:
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§ 5329. Consideration of criminal conviction

(a) Offenses.--Where a party seeks any form of custody, the 

court shall consider whether that party or member of that party’s 

household has been convicted of or has pleaded guilty or no 

contest to any of the offenses in this section or an offense in 

another jurisdiction substantially equivalent to any of the offenses 

in this section. The court shall consider such conduct and 

determine that the party does not pose a threat of harm to the 

child before making any order of custody to that party when 

considering the following offenses:

***

18 Pa.C.S. § 2702 (relating to aggravated assault).

***

Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, 

No. 64), known as The Controlled Substance, Drug, 

Device and Cosmetic Act, to the extent that it 

prohibits the manufacture, sale or delivery, holding, 

offering for sale or possession of any controlled 

substance or other drug or device.

23 Pa.C.S.A. § 5329(a).

The trial court addressed Mother’s claim regarding Section 5329(a) in 

its Rule 1925(a) opinion, as follows:

Father resides in the townhouse where he and Mother lived with 

the [C]hildren when they were an intact family. Since the parties’ 

separation, Father has leased a portion of the house to a nonfamily member. Father evicted the first tenant. Mother believes 

that we erred in failing to consider the testimony of Father’s 

current tenant, Mr. [R.] Mr. [R.] was identified as a potential 

witness at the pre-trial conference. Neither party presented him 

for examination at trial. Evidence of criminal charges/protective 

orders against Mr. [R.] were not admitted into evidence and 

therefore not considered. . . . There was no evidence presented 

that this individual poses a risk of harm to the [C]hildren. To the 

contrary, the [C]hildren indicated that they are comfortable with 

Mr. [R.], he is kind to them, and Father does not leave them alone 

under Mr. [R.’s] supervision at any time. We also considered the 

home study of Father’s residence performed by Adams County 

Children & Youth Services which indicated no safety concerns in 
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Father’s residence. However, out of an abundance of caution and 

with the goal of being pro-active regarding Father’s future 

tenants, we felt it to be in the best interest of the [C]hildren to 

order that Father to keep [sic] Mother apprised of any new 

tenant’s identity. This affords Mother the ability to discover 

relevant information about the tenant and raise any concerns with 

this court in the future. 

T.C.O., 12/27/19, at 10-11 (citation to the record omitted). 

The record contains little evidence detailing Father’s investigation of the 

criminal history of his current tenant. Father attempted to address this issue

on direct examination, testifying that he found out from the “opposite side” 

that his tenant had “some problems with the law,” the most recent of which 

occurred in 2014. N.T., 9/30/19, at 101-102. Father testified that he would 

address this issue by either making the tenant “remove to the different level”6

or move out of his home entirely. Id. at 101.

Father explained that he had previously only checked to see if his 

potential tenants were “on the list,” apparently referring to the Megan’s Law 

sexual offender registry, but that he would now also check any potential 

tenant for a criminal record. Id. at 205. On cross-examination, Mother’s 

counsel asked Father whether he was aware that his tenant “had been charged 

with second degree assault . . . And he has a PFA and he has possession of 

marijuana [sic]?”7 Id. at 184. Father stated that he was aware. Id.

____________________________________________

6 We presume that Father meant the tenant could move to a different level of 

his home.

7 Mother also presented evidence showing Father’s former tenant may have 

incurred criminal charges during his tenancy. N.T., 9/30/19, at 178-183.

Father explained that he no longer rented to his former tenant because the 

tenant failed to pay rent and damaged the home. Id. at 102.
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Thereafter, Mother’s counsel moved to admit documents relating to the 

tenant’s criminal record. Father’s counsel objected, arguing that the tenant 

had been acquitted of the charges in one instance, and that the charges were

nolle prossed in another instance. N.T., 10/24/19, at 336-37. Mother’s 

counsel agreed to withdraw the exhibits. Id.

8

In light of this evidence, we agree with Mother’s arguments in part. To 

the extent Mother contends that the trial court entered its order in violation 

of Section 5329(a), the plain language of the statute belies her claim. Section 

5329(a) applies specifically to convictions, guilty pleas, and no contest pleas. 

The record does not reveal any evidence that Father’s tenant has any relevant 

convictions or pleas pursuant to that subsection.

However, under the circumstances of this case, Mother is correct that 

the trial court abused its discretion by entering the custody order without an 

adequate review of Father’s tenant. When awarding custody, Section 5328(a) 

provides that a court must place weighted consideration on those factors 

affecting the safety of the child or children. 23 Pa.C.S.A. § 5328(a).

Here, the trial court heard undisputed testimony that Father’s tenant 

has a history of criminal charges, and a PFA order entered against him, which 

____________________________________________

8 The trial court did indicate at the conclusion of the hearing that it would 

admit Exhibit M17, a document relating to the alleged PFA order against 

Father’s tenant, although that exhibit does not appear with the other exhibits 

in the certified record. N.T., 10/24/19, at 337. It appears that the reason for 

this is that the trial court did not include Exhibit M17 in its subsequent order 

listing the exhibits admitted at the hearing and directing that the Prothonotary

place them under seal.
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indicates that he may pose a risk of harm to the Children. There is no detail 

as to the extent of Father’s investigation into his tenant’s background. While 

a home study was completed of Father’s residence, Father’s tenant did not 

participate in this study.

Based on this record, we find the trial court did not make an informed

decision that an award of shared physical custody would be in the Children’s 

best interest and that the Children would not be placed at risk. Rather, the 

trial court is directed make a more detailed inquiry and finding concerning any 

risk to the Children after it has provided counsel the opportunity to crossexamine the particular tenant. 

We also conclude that the trial court abused its discretion by failing to 

include provisions in its order sufficient to protect the Children’s safety going 

forward, given Father’s history of inadequate investigations of the background 

of his tenants. The trial court’s order places the burden of investigating 

Father’s tenants on Mother. T.C.O., 12/27/19, at 11 (“[W]e felt it to be in the 

best interest of the [C]hildren to order that Father to keep [sic] Mother 

apprised of any new tenant’s identity. This affords Mother the ability to 

discover relevant information about the tenant and raise any concerns with 

this court in the future”). 

As Father receives the financial benefit of renting of accepting tenants 

into his household, he should incur the cost and burden of investigating his 

tenants. We remind Father that it is his duty to ensure the Children’s safety 
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while they are in his care and that he should not take lightly any risk of

exposing the Children to dangerous individuals.

Accordingly, we conclude that the trial court’s order must also include a

provision directing that Father must conduct a thorough background 

investigation of any potential tenant before allowing any tenant into his home

and timely provide Mother with the results of such investigation. Mother would 

then have the opportunity to petition the trial court if she is not satisfied that 

Father has adequately sought to ensure the safety of the Children in his home 

while they are in his custody.

Lastly, as Mother and Father have a dysfunctional relationship, Mother 

argues that a shared physical custody schedule will increase conflict, which is 

unhealthy for the Children. She cites case law discussing the importance of 

cooperation when parents share physical custody.

9 Mother’s Brief at 27-30

(citing P.J.P. v. M.M., 185 A.3d 413 (Pa.Super. 2018)).

The trial court addressed the parties’ contentious relationship as follows 

in its Rule 1925(a) opinion:

____________________________________________

9 Mother also suggests that the trial court erred by failing to do a myriad of 

other things, such as order a custody evaluation, order various forms of 

counseling for the parents and the Children, and appoint a guardian ad litem

and legal counsel for the Children. Mother’s Brief at 27. Mother further

suggests that the trial court erred by failing to refer the family to the county 

child welfare agency for services. Id. Because Mother did not raise these 

issues before the trial court, and did not include them in her statement of 

questions involved or in her concise statement, she has waived them on 

appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived 

and cannot be raised for the first time on appeal”); M.Z.T.M.W., 163 A.3d at 

466 (“[I]ssues not included in an appellant’s statement of questions involved 

and concise statement of errors complained of on appeal are waived”).
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An amicable relationship between parents, although preferable, is 

not a prerequisite for a shared custodial relationship. In 

adjudicating this matter, we found that the level of conflict (factor 

13) favors neither parent and that neither parent is likely to 

encourage the [C]hildren’s relationship with the other parent 

(factor 1). Based upon our interview with the [C]hildren, it 

appears that the parents’ negativity and disrespect of one another 

has not overtly bled into the [C]hildren’s perception of the 

parents, nor has any parent caused alienation of the [C]hildren’s 

affection for the other parent (factor 8). The [C]hildren look to 

both parents for love and security. They derive various benefits 

from their time with both parents. Both parents have a sincere 

interest in being involved in all aspects of the [C]hildren’s lives. A 

shared schedule does not disrupt their educational or community 

stability. Both parents are well-educated, have stable

employment and are able to provide for each child’s basic needs. 

Both parents share a desire for their children to succeed in their 

endeavors and have supported them in their extracurricular 

activities. Our consideration of all the salient factors delineated in

[Section 5328(a)], based upon the evidence adduced at trial and 

the credibility of the witnesses, has led us to conclude that it is in 

the best interest of the [C]hildren to share equal time with their 

parents.

T.C.O., 12/27/19, at 11-12.

The existence of a high-conflict relationship is only one of many factors 

that a trial court must analyze when considering an award of custody, and the 

amount of weight that a court places on any one factor is almost entirely within 

its discretion. See 23 Pa.C.S.A. § 5328(a)(13) (directing that the court 

consider “[t]he level of conflict between the parties and the willingness and 

ability of the parties to cooperate with one another”); M.J.M., 63 A.3d at 339. 

The trial court in this case was clearly aware of the parties’ contentious 

relationship and considered it when reaching its decision. Therefore, the trial 

court complied with the requirements of the law and our deferential standard 
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of review requires that we accept its findings and determinations. See V.B., 

55 A.3d at 1197.

Based on the foregoing analysis, we vacate the trial court’s November 

6, 2019 Order and remand for further proceedings consistent with this 

Opinion. As discussed infra, we deny Mother’s request for sanctions in her 

application for extension of time to file a reply brief. 

Order vacated. Case remanded for further proceedings consistent with 

this opinion. Request for sanctions in Mother’s application for extension of 

time to file a reply brief denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/23/2020