J-A09012-19

2019 PA Super 210

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* Retired Senior Judge assigned to the Superior Court.

C.H.L.

v.

W.D.L., 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2617 EDA 2018

Appeal from the Order Entered, July 30, 2018,

in the Court of Common Pleas of Monroe County,

Civil Division at No(s): 580 DR 2016 and 5626 CV 2018.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

OPINION BY KUNSELMAN, J.: FILED JULY 08, 2019

W.D.L. (Husband) appeals from an order issued pursuant to the

Protection From Abuse (PFA) Act, 23 Pa.C.S.A. §§ 6101-6122. The PFA order 

provided C.H.L. (Wife), inter alia, exclusive possession of the marital residence

and awarded her temporary sole custody of the parties’ four-year-old 

daughter; the child was not named as a protected party in the order. After

careful review, we affirm.

In a meticulous, 42-page Rule 1925(a) opinion, the trial court detailed 

the “very calculated, complex, web of domestic violence, control and 

intimidation by Husband against Wife.” See T.C.O., 11/16/18, at 1. Those 

facts, crucial to our understanding the court’s decision, are ultimately not

essential to the disposition of Husband’s appeal. Briefly, the overture is this:

The parties wed after just three weeks of dating when Husband was 46 

and Wife was 20. Their five-year marriage produced a four-year-old daughter 
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and extensive litigation, replete with protective orders, contempt violations 

and criminal charges. Not until the instant PFA hearing, however, did the 

court recognize Husband’s “manipulation of all facets of the criminal justice 

and court system in order to achieve power and control over Wife.” See id.

at 30. The court stated that Husband “was playing the system like a 

Stradivarius.” See N.T., 7/30/18, at 42. Although Husband tried to persuade

the court that Wife suffered from various mental illnesses, the court ultimately 

concluded that Wife’s erratic behavior was attributable to years of domestic 

violence. 

At the PFA hearing, Wife testified to Husband’s extensive abuse and 

produced photographic evidence of the same. The court further determined 

that Husband used custody of the parties’ child as a “weapon against Wife.” 

See T.C.O. at 41. The court issued a two-year PFA order, which included

provisions awarding Wife exclusive possession of the marital residence and

temporary sole custody of the child pending a custody conference scheduled 

for seven weeks later. 

Husband filed this timely appeal and presents five issues for our review:

1. Did the trial court err and/or abuse its discretion in 

granting Wife’s protection from abuse petition when 

the award was against the weight of the evidence 

presented and against the credibility of Wife based on 

evidence during the hearing?

2. Did the trial court err and/or abuse its discretion in 

not allowing Husband to present certain evidence 

which would have shown that Husband was not 

abusive toward Wife and would have shown the nature 
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of the parties’ relationship, such as text messages and 

letters?

3. Did the trial court err and/or abuse its discretion in 

not allowing Husband to present evidence which 

showed he had the right to occupy the subject 

property pursuant to a divorce settlement agreement, 

and where Husband had not welcomed Wife to the 

subject property and asked Wife to leave the subject 

property?

4. Did the trial court err and/or abuse its discretion in 

evicting Wife from the subject property when the 

parties had executed a divorce settlement agreement, 

which stated appellant would have exclusive 

possession of the subject property?

5. Did the trial court err and/or abuse its discretion in 

awarding temporary primary custody to Wife when 

Wife testified Husband had not physically harmed the 

child nor threatened the child, and Wife testified that 

Husband was a good father, and was precluded from 

presenting the current custody order where he had 

sole physical custody?

See Husband’s Brief at 9-10.

Our standard of review for PFA orders is well-settled. In the context of 

a PFA order, we review the trial court’s legal conclusions for an error of law or 

abuse of discretion. Boykai v. Young, 83 A.3d 1043, 1045 (Pa. Super. 2014) 

(citations omitted).

Husband’s first claim seemingly challenges the weight of the evidence 

presented at the PFA hearing. Throughout his brief, however, Husband 

conflates the weight of evidence with the sufficiency of evidence. See 

Husband’s Brief at 42. The combination of Husband’s departure from the
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actual issue presented, and the fact that he cites no relevant authority makes 

it difficult to discern the substantive nature of his claim. 

Whatever its foundation, we conclude Husband’s first issue is waived. 

It is well-established that the failure to develop an argument with citation to, 

and analysis of, pertinent authority results in waiver of that issue on appeal. 

See Pa.R.A.P. 2119(b); Eichman v. McKenon, 824 A.2d 305, 3019 (Pa. 

Super. 2003). Here, Husband cites no relevant legal authority to discuss 

either the weight or the sufficiency of the evidence; one cited case addresses 

a court’s appearance of impropriety and the other is a decades-old precedent 

concerning the absence of due process at a zoning hearing. See Husband’s 

Brief at 30. Husband merely attempts to re-litigate the facts and the PFA 

court’s credibility findings. See Husband’s Brief at 30-42.

To that end, we observe that the credibility of witnesses and the weight 

to be accorded to their testimony is within the exclusive province of the trial 

court as the fact finder. See Mescanti v. Mescanti, 956 A.2d 1017, 1020 

(Pa. Super. 2008). In reviewing the validity of a PFA order, this Court must 

view the evidence in the light most favorable to petitioner and granting her 

the benefit of all reasonable inferences. See S.W. v. S.F., 196 A.3d 224, 228 

(Pa. Super. 2018) (citation omitted). And we must defer to the lower court’s 

determination of the credibility of witnesses at the hearing. Id. Thus, even if 

Husband had preserved his first issue, we would still find his claim to be 

meritless.
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Turning to his second claim, Husband argues that the PFA court 

erroneously prevented him from presenting relevant evidence, such as text 

messages and letters. Again, our review is hindered by deficiencies in 

Husband’s brief.

This portion of Husband’s argument section is a mere 200 words.1 See 

Husband’s Brief at 43-44. Although he cites legal precedent, a rule of 

evidence, and the transcript, he does not actually identify the evidence he 

sought to introduce, nor the court’s alleged exclusion of the evidence, nor his 

objection to the court’s ruling. Id. An exchange during his direct examination

is the only identified portion of the record where Husband claims the court

erroneously limited the admission of his evidence:

ATTORNEY: So [Wife] is [at the marital residence] as of 

now?

HUSBAND: She is not. She left on the 21st of this month 

after being requested to, after about two 

months’ worth of requests --

THE COURT: Alright, I’m going to stop you there, 

[Husband], so you’re just going to answer 

the question and not editorialize, otherwise 

we’re never going to get through this.

N.T., 7/30/18, at 3-4.

Notably, neither Husband nor his attorney took issue with the trial 

court’s procedure:

____________________________________________

1 We observe, however, that Husband did not include a certificate of 

compliance ensuring that the brief, which totaled 55 pages, was less than 

14,000 words. See Pa.R.A.P. 2135(a). 
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ATTORNEY: Fair enough.

HUSBAND: Yes, ma’am.

Id. at 4.

Compounding our confusion, we note that the trial court explained that 

the only evidentiary rulings it made were actually in Husband’s favor:

At no time during the final PFA hearing did Wife raise an 

objection to any evidence presented by Husband during his 

case in chief. Nor did the Court sustain any objection or 

preclude Husband from presenting evidence of any kind. In 

fact, the only objections raised during the proceeding were 

by Husband’s counsel seeking to preclude evidence or 

testimony Wife sought to admit, which [the court] 

sustained.

See Trial Court Opinion, 11/16/18 at 36-37.

For several reasons, we must again find waiver. For one thing, issues 

not raised in the lower court are waived and cannot be raised for the first time 

on appeal. Pa.R.A.P. 302(a). If Husband had other contentions during the 

hearing, he did not properly raise them. In terms of his appellate brief, we 

observe that “[i]f reference is made to pleadings, evidence, charge, opinion 

or order, or any other matter appearing in the record, the argument must set 

forth, in immediate connection therewith, or in a footnote thereto, a reference 

to the place in the record where the matter referred to appears.” Pa.R.A.P. 

2119(c). If Husband had other contentions he meant to address in his brief, 

he did not properly reference them.

It is not the duty of this Court to act as appellant’s counsel, and we 

decline to do so. See Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 
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2005). “We shall not develop an argument for an appellant, nor shall we 

scour the record to find evidence to support an argument; instead, we will 

deem the issue to be waived.” Commonwealth v. Connavo, 199 A.3d 1282, 

1289 (Pa. Super. 2018) (citations omitted). When an allegation is 

unsupported by any citation to the record, such that this Court is prevented 

from assessing the issue and determining whether error exists, the allegation 

is waived for purposes of appeal. Commonwealth v. Williams, 176 A.3d 

298, 306 (Pa. Super. 2017) (citations omitted). This Court cannot conduct a 

meaningful review if it has to guess what issues an appellant is appealing.

See Jones v. Jones, 878 A.2d 86, 89 (Pa. Super. 2005) (finding waiver when 

this Court could not discern appellant’s issues on appeal) (citation omitted). 

We conclude that Husband’s second issue is also waived.

We discuss Husband’s third and fourth issues contemporaneously, as 

both concern the court’s award of exclusive possession of the marital 

residence to Wife. First, Husband contends that Wife was not entitled to 

receive exclusive possession of the marital residence, because Wife had 

previously executed a marriage settlement agreement wherein she had

granted possession to Husband.

2

 Second, Husband contends that Wife was 

____________________________________________

2 We note that at the time of the PFA hearing, the parties were not divorced. 

Wife has since averred that the settlement agreement is void and 

unenforceable on the grounds of incapacity and intentional fraud. In other 

words, this is not a case where, long after the divorce decree and equitable 

distribution, a PFA court awarded one ex-spouse possession of other’s

property.
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not entitled to this relief, because she did not explicitly request it in her PFA 

petition.

Husband argues that the court did not allow him to present the 

settlement agreement showing he had a right to exclude Wife from the subject 

property. See Husband’s Brief at 45. Like his previous evidentiary challenge, 

Husband’s recitation of what transpired at the hearing is just not true. 

Husband cannot cite to where he attempted to present such evidence but was 

rebuffed by the court. See also T.C.O., at 36-37 (excerpt quoted above).

More to the point, Husband is simply incorrect that the court lacked 

authority to award the marital residence to Wife because she does not hold 

title to it. The Protection From Abuse Act specifically allows the court to grant 

a plaintiff exclusive possession of the residence even though the defendant is 

the sole owner if the defendant has a duty to support the plaintiff or minor 

children living in the residence. See 23 Pa.C.S.A. § 6108(a)(3). 

In the alternative, Husband argues that the court could not award

exclusive possession, because Wife did not expressly request such relief in her 

PFA petition. See Husband’s Brief at 48. He analogizes the instant case to 

when a court issues a PFA order on behalf of a party who did not properly 

petition for one, a situation clearly forbidden by Section 6108(c) (concerning 

mutual orders of protection).

His argument is novel, but we need not decide whether the court is 

confined to only those forms of relief requested in the petition, or whether the 

court has the broad discretion to award any form of relief under Section 6108. 
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We conclude that the relief Wife requested in her PFA petition authorized the 

court to award exclusive possession under Section 6108(a)(3).

Wife’s PFA petition was a standardized document where she, as the 

petitioner, filled in blanks and checked off boxes. Such is a typical practice 

across the Commonwealth and often completed with the help of volunteers. 

Husband is technically correct; Wife did not check off the box that stated: 

“Plaintiff is asking the court to evict and exclude the Defendant from the 

following residence: _____.” See Wife’s Petition for Protection From Abuse at 

4. Likewise, Wife did not check off the box, which prayed upon the court to: 

“Grant such other relief as Plaintiff requests and/or the court deems 

appropriate.” Id.

However, Wife did check the box that requested the court to: “Require 

Defendant to provide Plaintiff and/or minor child/ren with other suitable 

housing.” Id. Wife also articulated that she lost “money, car, home” on 

account of Husband’s abuse. Id. Consequently, Husband was on notice at the 

PFA hearing that he would be responsible for providing suitable housing for

Wife and their child if Wife succeeded on her petition.

Given his responsibility to the parties’ child, the court may have 

determined it was best for the child to remain at the same address while 

custody switched from Husband to Wife by virtue of the PFA order. But we 

need not speculate, because Wife clearly requested that Husband provide her 

and their child with suitable housing. The PFA Act authorizes the court to 

provide such relief. The court observed that Husband had the financial ability
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to comply. Consequently, the court did not abuse its discretion when it 

determined that exclusive possession of the marital residence was an 

appropriate mechanism to facilitate this relief. Husband’s third and fourth 

issues are also without merit.

We turn now to Husband’s final contention that the court erred by 

awarding Wife temporary custody of their four-year-old daughter. See 

Husband’s Brief at 51. Before we address the merits of Husband’s challenge, 

we consider whether the PFA order’s temporary custody provision is moot.

The PFA order, dated July 30, 2018, awarded Wife temporary sole legal 

and physical custody of the child, and directed the parties to attend a custody 

conference before a conciliator on September 12, 2018. The parties appeared 

for the conference, and the conciliator took the matter under advisement. 

Before a decision was issued, Husband filed a PFA petition against Wife on 

behalf of the child and provided the court a photo of a welt on the child’s body. 

The court granted Husband a temporary PFA order, and the child was placed 

in his custody. A final PFA hearing was delayed until late October 2018 while

the local Children and Youth Services investigated.3 Following the 

investigation, the court held a final PFA hearing and denied Husband’s petition. 

Custody then reverted back to Wife, pursuant the temporary custody provision 

of the July 30, 2018 PFA order.

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3 The results of the CYS investigation are not in the record, but the trial court 

noted that CYS did not commence a dependency action. See T.C.O. at 22.
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On November 1, 2018, the custody conciliator’s report indicated that the 

parties were unable to reach an agreement. The court scheduled a preliminary 

hearing for November 19, 2018, appointed the child a guardian ad litem, 

ordered a comprehensive custody evaluation, and established an interim 

custody order. There, our knowledge of the custody case ends with the trial 

court’s issuance of its Pa.R.A.P. 1925(a) opinion on November 16, 2018.

There is no question the court intended for the PFA order’s custody 

provisions to apply only on an emergency, temporary basis until the parties 

met at the custody conference. Because the Interim Custody Order (dated 

November 1, 2018) almost certainly superseded the temporary custody 

provisions of the PFA Order (dated July 30, 2018), it appears that the issue 

Husband presents in this appeal regarding the PFA Order’s custody provision 

is moot.4

This Court has held that “we may sua sponte raise the issue of 

mootness, as we generally cannot decide moot or abstract questions, nor can 

we enter a judgment or decree to which effect cannot be given.” E.B. v. D.B., 

--- A.3d ---, 2019 PA Super 146, at *7, (Pa. Super. May 6, 2019) (citing In 

re L.Z., 91 A.3d 208, 212 (Pa. Super. 2014) (en banc), rev’d on other 

grounds, 111 A.3d 1164 (Pa. 2015) (quotations omitted).

Despite our general rule regarding mootness,

____________________________________________

4 By now there should exist a final custody order, which presumably subsumes 

both the Interim Custody Order and the temporary custody provision of the 

PFA Order.
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this Court will decide questions that otherwise have been 

rendered moot when one or more of the following 

exceptions to the mootness doctrine apply: 1) the case 

involves a question of great public importance, 2) the 

question presented is capable of repetition and apt to elude 

appellate review, or 3) a party to the controversy will suffer 

some detriment due to the decision of the trial court.

Id. (quoting In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002)).

In E.B. v. D.B., we reviewed the merits of an interim order that modified 

a pre-existing custody arrangement pending a final hearing. The interim order 

was reviewable because otherwise the interim order would likely have evaded 

our review due to its interlocutory nature. Id.; see also Plowman v. 

Plowman, 597 A.2d 701 (1991) (reviewing an interlocutory order permitting 

a mother to relocate with her child despite the existence of a later order 

entered after a full custody hearing).

Here, because the instant PFA order affected the non-custodial parent's 

right to “access to the child and impacted the status quo that would later set 

the stage for the full custody trial, we conclude that we ought to review the 

proper procedures for entry” of temporary custody provisions in a PFA order.

See id. As in E.B., we are satisfied that the question presented concerning 

the PFA’s temporary custody provision is “capable of repetition and apt to 

elude appellate review.” See id. at *8. As in E.B., “the history of this case 

suggests that these parties are likely to litigate continually aspects of their 

custody arrangement, and the trial court might again try to resolve their issues 

without conducting a full trial.” See id. Although the trial court fashioned a 

sole custody provision on a temporary basis, that provision was the operating 
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custody arrangement for at least three months. We may proceed to the merits 

of Husband’s final contention.

Husband asserts that the court erred when it did not consider the child’s 

best interests when displacing the prior custody order and awarding Wife 

temporary custody out of the PFA order. 

To discern whether the court erred, we must examine the connection

between the Protection From Abuse Act (23 Pa.C.S.A. §§ 6101-6122) and the 

current iteration of the Child Custody Act (23 Pa.C.S.A. §§ 5321 – 5340), both 

of which are chapters under the Domestic Relations Code. When considering 

issues of statutory interpretation, the applicable standard of review is de novo

and our scope of review is plenary. Trout v. Strube, 97 A.3d 387, 389 (Pa. 

Super. 2014).

Believing the facts to be similar, Husband relies exclusively on Shandra

v. Williams, 819 A.2d 87 (Pa. Super. 2003), wherein we concluded that the 

trial court had improperly modified a child custody order following a PFA 

hearing without first providing the parties an opportunity to introduce 

evidence relating to the best interests of the child. Shandra, 819 A.2d at 88. 

Husband’s reliance is misplaced.

In Shandra, although the custody portion of the PFA order was entered 

ostensibly under the auspices of section 6108(a)(4) (relating to temporary 

custody), the trial court effectively entered a final custody order. There, the 

court permanently suspended all of the father’s custodial rights until he 

achieved a certain condition, namely the release from his halfway house. Id.
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at 90-91. We reiterated that the right of the PFA court to award temporary 

custody was intended to provide ancillary relief regarding children in abuse 

actions, but not to establish a procedure for determining permanent custody.

Id. at 91. (Citation omitted). Because the Shandra PFA court effectively 

issued a final custody award, it erred by not abiding by the proper custody 

procedure, including notice and an opportunity to be heard on substantive

custody considerations, i.e. the child’s “best interests” as defined by statute.

In Shandra, we quoted the pertinent custody statute nearly verbatim 

when we stated: “[I]t is well-settled, that in any instance in which child 

custody is determined, the overriding concern of the court must be the best 

interest[s] and welfare of the child, including the child’s physical, 

intellectual, emotional and spiritual well-being.” See id. (Emphasis 

added); see also 23 Pa.C.S.A. § 5301(a).

In the years since Shandra, sections 5301- 5315 of the Child Custody 

Act have been repealed and replaced. The new iteration of the Child Custody 

Act requires a 16-factor, best interests analysis when awarding any form of 

custody. See 23 Pa.C.S.A. § 5328(a).

In other words, we could not apply the Shandra best interests rule in 

any event, as it was based on a statute now defunct. What Husband

essentially argues then, is that the court erred by not conducting a best 

interests analysis under Section 5328(a) of the current Child Custody Act.

Absent guidance from our Legislature or our Supreme Court, we 

conclude that a PFA court need not conduct a best interests custody analysis
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to award temporary custody as form of relief under section 6108 of the 

Protection From Abuse Act.

The purpose of the Protection From Abuse Act is to protect victims of 

domestic violence from the perpetrators of that type of abuse and to prevent 

domestic violence from occurring. Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. 

Super. 2013)(citation omitted). It is well-settled that trial courts have the 

authority to enter protection from abuse orders that conflict with custody 

orders. See Lawrence v. Bordner, 907 A.2d 1109, 1113 (Pa. Super. 2006)

(citing Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa. Super. 1993)). The 

PFA Act allows the court to award temporary custody or establish temporary 

visitation rights with regard to minor children. See 23 Pa.C.S.A. § 6108(a)(4). 

Where the court finds after a hearing that the defendant has inflicted serious 

abuse, the court may deny the defendant custodial access to a child. See 23 

Pa.C.S.A. § 6108(a)(4)(iii). In order to prevent further abuse during periods 

of access to the plaintiff and child during the exercise of custodial rights, the 

court shall consider, and may impose on a pre-existing custody award, 

conditions necessary to assure the safety of the plaintiff and minor children 

from abuse. See 23 Pa.C.S.A. § 6108(a)(4)(vi).

Custody wise, a PFA order is not designed to impose anything but 

emergency relief. See Dye for McCoy, supra, 621 A.2d at 145. To 

understand this, look no further than the PFA Act: “Nothing in this paragraph 

[relating to temporary custody as a form of relief] shall bar either party from 

filing a petition for custody under Chapter 53 (relating to custody) or under 
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the Pennsylvania Rules of Civil Procedure.” See § 6108(a)(4)(v). But while

the domestic violence emergency is still pending, a PFA order may alter a preexisting custody order and remand for clarification to avoid conflict. See Dye 

for McCoy, 621 A.2d at 145. “To hold otherwise would have the effect of 

emasculating the central and extraordinary feature of the PFA which is to 

prospectively control and prevent domestic violence.” Id.

Moreover, the PFA Act does not require a child to be physically struck 

before a court can award temporary sole custody to a plaintiff. The court may 

do so even though the defendant has inflicted serious abuse upon the plaintiff

alone. See § 6108(a)(4)(iii)(B).

There is good reason for this. For one, research indicates that children 

who are exposed to domestic violence suffer a torrent of adverse effects 

regardless of whether they are direct victims of the physical abuse. See, e.g.,

Rosie Gonzalez & Janice Corbin, The Cycle of Violence: Domestic Violence 

and Its Effects on Children, 13 SCHOLAR 405, 413 (2011). Even simple

exposure to such violence produces physical and mental results similar to 

those observed in maltreated children. See id. (Footnotes omitted).

5

 The PFA 

____________________________________________

5 We observe the research’s non-exhaustive litany that might befall exposed 

children:

Children living in violent homes suffer both immediate and 

long-term effects such as trauma-related symptoms, 

depression, low self-esteem, and aggression. They are also 

likely to suffer from unhealthy sleeping and eating habits as 

infants, exhibit aggressive and regressive behavior in 
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Act also guards against defendants who use children as tools against those

seeking protection, even if the children are not themselves physically abused. 

In the instant case, the court found exactly that.

Wife testified she always “positioned” herself away from the child when 

Husband beat her so the child would not see the abuse. See N.T., 7/30/18,

____________________________________________

school, and behave delinquently as teenagers. The 

psychological impact on children living in violent homes can 

manifest itself as post-traumatic stress disorder (PTSD) or 

other psychiatric disorders, including dissociative disorders, 

anxiety, and mood disorders. These children also have a 

tendency to exhibit suicidal ideation, increased levels of 

fear, unnatural passivity and dependency, as well as 

impulsivity and extreme crying. Younger children generally 

suffer from poor health, insomnia, excessive screaming, 

frequent headaches, stomachaches, diarrhea, asthma, and 

peptic ulcers. Accordingly, children exposed to family 

violence are admitted to hospitals twice as often as other 

children, have an increased number of psychosomatic 

complaints, and are more frequently absent from school due 

to health problems. Furthermore, victims of abuse 

frequently turn to drug and alcohol abuse in order to cope 

with traumatic childhood events, which in turn can lead to 

the development of fatal diseases such as heart disease, 

lung cancer, and liver disease. 

* * *

In addition to the increased risk for future violent 

victimization, children exposed to domestic violence are also 

more likely to become perpetrators of violence against 

others.

Id. at 413-415, 418 (footnotes and quotations omitted).
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at 27. Wife further testified that Husband is not a physical danger to the 

child, but she stated:

I believe mentally it’s not healthy for [the child], because 

[Husband] tells [the child] ‘mommy’s going away for a long 

time’ and ‘you’re going to get a new mommy,’ and [the 

child] repeats ‘I don’t want a new mommy, I love my 

mommy’ and yeah, he like tells, just tells her that. So he’s 

not, no, he’s not physically abusive to [the child] but he tells

her stuff that you should not tell a four-year-old.

Id., at 30.

The court classified these types of statements as destructive and 

concluded that Husband has utilized custody of the parties’ small child “as a 

weapon against Wife.” See T.C.O. at 41.

Contrary to Husband’s assertion, the PFA court actually concluded that 

temporary custody was in the child’s best interests. Id. at 43. Indeed, some 

of the court’s considerations appear to correspond with a formal custody 

analysis.

6

 Nevertheless, when awarding temporary custody out of a PFA 

order, the court need only consider the risk the defendant poses to the child

as well as the plaintiff. See 23 Pa.C.S.A. § 6108(a)(4).

We cannot ignore the sheer impracticality of Husband’s suggestion, that 

a court conduct a full-blown custody hearing as part of a final PFA hearing. 

With an eye toward judicial economy, we observe that the dichotomy between 

____________________________________________

6 The Child Custody Act mandates that a court consider both the abuse one 

parent suffers at the hands of the other, as well as the attempts of the parent 

to turn the child against the other. See 23 Pa.C.S.A. § 5328(a)(2),(8). A court 

must also give weighted consideration to those factors affecting the safety of 

the child. Id.
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a PFA order’s temporary custody provision and a final custody order is akin to 

a jurisdictional challenge under the Uniform Child Custody Jurisdiction and 

Enforcement Act, 23 Pa.C.S.A. §§ 5401 et seq. There, a court must first hold 

a hearing to determine whether it even has jurisdiction to award custody; the 

court leaves for another day entirely the substantive custody considerations. 

But even then, a court exercising temporary emergency jurisdiction may 

award interim custody relief. “A court of this Commonwealth has temporary 

emergency jurisdiction if [inter alia] it is necessary in an emergency to protect 

the child because the child or sibling or parent of the child is subjected to 

or threatened with mistreatment or abuse.” § 5324(a) (emphasis added). The 

risk of abuse to the parent alone is enough to authorize the court to protect 

the child.

Similarly, a temporary custody provision in a PFA order is just like any 

other interim custody order. Section 5323(b) of the Child Custody Act makes 

clear that interim custody orders are not the types of custody awards 

necessitating a 16-factor, best interests analysis under Section 5328(a). 

Often, it will be reasonable and necessary for the trial court to institute a 

temporary arrangement as a stopgap during litigation. See E.B., 2019 PA 

Super 146, at *10. It is well-settled that trial court has authority to award 

custody on a temporary basis so that it may address emergency situations 

and protect a child until a final custody hearing can be held, when a permanent 

order can be entered. See S.W.D. v. S.A.R., 96 A.3d 396, 405 (Pa. Super. 

2014) (citing Pa.R.C.P. No. 1915.13 (“Special Relief”); see also 23 Pa.C.S.A. 
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§ 5323(b) (allowing interim award of custody in the manner prescribed by the 

Pennsylvania Rules of Civil Procedure governing special relief). 

The object of all statutory interpretation and construction is to ascertain 

and effectuate the intention of the General Assembly. See 1 PA.C.S.A. § 

1921(a). We must presume that our Legislature did not intend any statutory 

language to exist as mere surplusage. See, e.g., C.B. v. J.B., 65 A.3d 946, 

951 (Pa. Super. 2013). With those principles in mind, we conclude there is no 

conflict between the PFA Act’s relief of temporary custody and the Child 

Custody Act’s mandate that a court conduct a best interests analysis when 

awarding any form of custody. See 23 Pa.C.S.A. § 6108(a); see also 23 

Pa.C.S.A. § 5323(b). The best interests mandate only applies to final custody 

awards, not temporary solutions to emergencies.

We recognize the apprehension that some could exploit the PFA Act, i.e. 

that dishonest parents might utilize a protection order as a vehicle to bypass 

the Child Custody Act and obtain a backdoor custody modification. The 

Domestic Relations Code accounts for the potential exploitation by separating 

the custody issue into two inquiries: first, a PFA court addresses the exigent

risk of abuse posed to the child as well as the petitioner; thereafter, the 

custody court determines the child’s best interests. This procedure safeguards 

the rights the both parties in their dual roles as PFA litigants and as parents.

7

Still, as we cautioned in E.B., supra, courts should be wary of prolonged 

____________________________________________

7

In larger counties where the courts have been able to adopt a “one family, 

one judge” policy, this process is all the more seamless. 
J-A09012-19

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interim orders as they could violate a non-custodial parent’s constitutional 

right to due process. That was not the situation here.

In the case at bar, the PFA court appropriately considered the risk of 

abuse posed by Husband to Wife and the child when granting Wife temporary 

sole custody pursuant to Section 6108(a)(4). Its decision was not an abuse 

of discretion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/19