J-S65015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.S.

v.

L.A.B. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1348 MDA 2019

Appeal from the Order Entered July 25, 2019

In the Court of Common Pleas of York County 

Civil Division at No(s): 2011-FC-001342-03

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: FEBRUARY 28, 2020

L.A.B. (“Mother”) appeals the trial court’s July 25, 2019, order finding 

Mother in contempt and awarding C.S. (“Father”) $500.00 in counsel fees. 

Mother further challenges the trial court’s order reaffirming a prior custody 

order of October 3, 2018, that awarded Mother and Father shared legal 

custody and Father primary physical custody of the parties’ daughter, L.A.S. 

(“Child” or “the Child”) (born February 2010). After careful review, we affirm

in part and vacate in part.

Beginning in September 2011, Mother and Father shared legal and 

physical custody of Child. No further litigation activity occurred until May 2018, 

when Father filed a petition for contempt and modification of custody. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The parties reached a resolution regarding Father’s petition and the trial 

court entered an order on October 3, 2018, providing the parties with shared 

legal custody. With respect to physical custody, the order divided the parties’

custody over two-week periods. 

During the first week, the order granted Mother overnights on Monday, 

Tuesday, Saturday, and Sunday. See Order, 10/3/18, at 2. The order granted

Father overnights on Wednesday, Thursday, and Friday. See id. During the 

second week, the order granted Mother the Monday overnight, with Father 

exercising physical custody for the remainder of the week. See id. 

Custody exchanges occurred at the end of Child’s school day during the 

week, and at noon on Saturdays and “any other non-school time.” See id. 

Accordingly, during each two-week period, Father exercised physical custody 

for nine overnights, and Mother exercised physical custody for five overnights. 

Further, the court ordered the parties to engage in co-parenting 

counseling; directed that the primary communication between the parties 

occur through My Family Wizard; precluded Mother from drinking while Child 

was present; instructed each party to have Child to school on time; and 

required both parties “to use common sense in scheduling telephone calls to 

talk to the child.” See id. at 4-12. 

On February 28, 2019, Mother filed a petition for modification, seeking 

a return to a shared physical custody schedule. Father responded by filing a 

petition for contempt on March 13, 2019. Father’s petition alleged, inter alia, 

that Mother: engaged in phone calls that were excessive, including during 
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Father’s holiday, Thanksgiving; continued to drink alcohol while Child was 

present; brought Child to school late twice; did not consider the welfare of 

Child prior to filing her petition for modification; and failed to use Our Family 

Wizard for all communications. See Petition for Contempt, 3/13/19, at ¶¶ 5-

9.

The court held a combined hearing on the petitions on July 23, 2019. At 

the hearing, Mother, Father, Child’s maternal grandmother, Child’s paternal 

grandmother, and Father’s wife, N.S. (“Stepmother”) testified. Further, the 

court interviewed Child in camera.

Following the hearing, the trial court denied Mother’s petition for 

modification by reaffirming the October 3, 2018, custody order.1 See N.T., 

7/23/19, at 128-29. The only change to the prior order was that the parties 

were discharged from co-parenting counseling. See id. In support, the court 

placed the following findings of fact and conclusions of law on the record.

The first factor is which party is more likely to encourage 

and permit frequent and continuing contact between the child and 

the other party. We find that to be a neutral factor. We already 

stated that the child [] indicated that the parents are getting along 

better and we heard no testimony that either party was trying to 

keep the child from the other party and so that is really not a 

factor.

Second factor is any past or present abuse. We heard no 

testimony on that. We don’t believe any abuse has taken place, 

so factor number two is also not a factor. Factor 2.1 is relative to 

____________________________________________

1 The court stated: “it is the Order of Court in this matter that the order of 

[October 3] of 2018 is ratified in full.” N.T., 7/23/19, at 128-29.
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possible child abuse and protective services. Again, we heard no 

testimony on that, and, therefore, factor 2.1 is also not a factor.

Factor 3, the parental duties performed by each party on 

behalf of the child. We find that slightly in favor of Father. While 

Mother seems to be doing a good job as a mother, it is clear to 

this [c]ourt and candidly it was clear to this [c]ourt back in

September when we took testimony before the agreed-upon

order, that Father is[,] for lack of a better term, a super dad. The 

enthusiasm about which he testified today about the things that 

he does with [Child] and the way he has manipulated his work 

hours and job requirements so that he can spend almost every 

weekday that [Child] is with him he can spend with her by working

at home, and a lot of other testimony indicates that he is [a] far 

better than average father. Accordingly, that factor is lightly in 

favor of Father.

Factor 4, is [the] need for stability and continuity in the 

child’s education, family life, and community life. Again, this is 

slightly in favor of Father. Mother has continued, as she did when 

we heard this matter back in September of last year, Mother has

continued to be a bit of what we call irresponsible. She has been 

late for school three times, two by her own admission. She uses 

for day care and so forth people in her family that do have DUIs. 

That alone wouldn’t be a big deal, but it is just one of many 

reasons why we find Mother to be a bit irresponsible. She has 

abused the phone privileges. She didn’t show up for [the coparenting counselor,] Laura Frie’s appointment. She totally 

missed her daughter’s dance recital, even though dance was the 

thing that Mother introduced the daughter to. Again, Factor 4 is 

slightly in favor of Father.

Factor 5, the availability of extended family. Clearly[,] both 

parties have a high deal of involvement with extended family, 

which is commendable and obviously this child has prospered from 

that. Therefore, that is a neutral factor.

Factor 6, the child’s sibling relationships. While V[.] is a 

step-sister, it was clear to this court before we started testimony 

and interviewed the child, herself, that [Child] considers V[.] to 

be a sister. The child[] did tell me about the things that she does 

with V[.]. It is clear they do a great number of things together. 

Father’s exhibits have pictures in them that they obviously do 

everything together while [Child] is with her father. Candidly, we 
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find that relationship, even though it is a step-sister, we find it to 

be a sibling relationship and a fairly strong factor in favor of 

Father.

Factor 7, the well-reasoned preference of the child. Child 

very clearly said she did not want the schedule changed. I asked 

her several times in several different ways if there was anything 

she would change about the schedule, and she said not. Child, 

when interviewed by this [c]ourt[,] was intelligent, articulate,

animated, funny, and just a wonderful child. These parties are 

doing a great job raising this child. I found what she told me to be 

totally credible with no coaching involved, so I take her preference 

with some fairly good amount of weight. Clearly[,] her preference 

is to keep the schedule the way it is, so that’s a factor in favor of 

keeping the order the way it is. Or[,] said differently, that is a 

factor in favor of Father.

Number 8, the attempts of a parent to turn the child against 

the other parent, unless there is domestic violence. I really didn’t 

hear any of that. I don’t think that’s a factor and we are not 

considering that as a factor.

Factor 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. Mother testified, and I 

believed her, that she is very loving and takes care of the child’s 

emotional needs well when the child is with her. However, Father, 

again[,] almost in like [a] super dad kind of role, obviously takes 

care of the child’s needs extremely well, including her emotional 

needs. We can’t help but find that factor slightly in favor of Father.

Factor 10, which party is more likely to attend to the daily, 

physical, emotional, developmental, educational and special 

needs of the child. Again, this is lightly in favor of Father. He went 

to both parent-teacher conferences. Mother testified she only

went to one. Again, Mother missed the recital. Mother just seems 

to have trouble getting to places on time and reliably, whereas 

Father is much more consistent and attends to these things 

reliably.

Factor 11, the proximity of the residences of the parties. We 

had a stipulation that they live, I think it was seven miles apart. I 

think someone said that is 15 or 20 minutes. That is not a factor.
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Factor 12, each party’s availability to care for the child or 

ability to make appropriate child care arrangements. Again[,] like 

the extended family, both parties have done a commendable job 

of arranging for day care when necessary, having family provide 

that day care when it is necessary, and that really both parties are 

doing that so well that is a neutral factor.

Factor 13, the level of conflict between the parties and their 

ability to cooperate with one another. Back in September that was 

fairly poor. Whether it’s been the passage of time or the four or

five sessions the parties had with Laura Frie or what, I’m not sure, 

but the level of conflict has abated and they are getting along 

better. I specifically asked [Child] if they ever argue, yell at each 

other, or call each other names, she said none of that. That is not 

a factor, and I am glad it’s not a factor. I commend both parties 

for deescalating the conflict. 

I would very much like to see the parties use the 

appointment app on OurFamilyWizard. Apparently[,] neither of 

them understood that, so that is why we put it in the order. Since 

we have ratified the [October] 2018 order, they are to use 

OurFamilyWizard not just to communicate with each other but also 

for appointments. It makes it so easy to have everyone know

when the appointments are, where they are, and there [are] no 

accusations that you didn’t tell someone about it, because it’s all 

documented on OurFamilyWizard. At any rate[,] it’s a neutral 

factor.

Factor 14, the history of drug and alcohol abuse. Candidly, 

we don’t believe that Mother has completely overcome her abuse 

of alcohol. Her family certainly hasn’t, but we really didn’t have

anything solid to base that on, so we are not considering it as a 

factor.

Factor 15, the mental and physical condition of a party or a 

member of a party’s household. We heard nothing bad about 

anyone’s mental or physical condition, so that is not a factor.

Factor 16, any other relevant factor. There is no other 

relevant factor in this matter.

Id. at 129-35.

Further, the court found Mother in contempt, reasoning:
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[W]e find Mother in contempt of court for extended phone 

calls longer than common sense would dictate, particularly on the 

Thanksgiving [D]ay. Father testified that it was so long it 

interfered with their Thanksgiving meal. This is a 9/5 schedule. It 

is a shared schedule. It is not exactly 50/50, but it is a shared 

schedule, so the necessity for long telephone calls just is not 

there. We find Mother in contempt for that. 

We also find Mother in contempt for missing the July 11th

of 2019 appointment with Laura Frie. The Order was very specific 

that the parties were to do co-parent[ing] counseling with Mr. 

Bare, or if he wasn’t available, with someone else. They started 

that with Laura Frie. They were to continue that. The Order says 

that they were to continue that until discharged by the therapist. 

Mother didn’t do that, she didn’t show up on July 11th of 2019, so 

she is in contempt of court on that second count.

For the contempt of court, the [O]rder of the [c]ourt is that 

Mother shall pay the sum of $500 attorney’s fees to Father within 

60 days of today.

Order, 7/25/19.

Mother timely filed a notice of appeal and concise statement of errors 

complained of on appeal. The trial court authored a Rule 1925(a) opinion.

On appeal, Mother raises the following issues for our review:

1. The trial court abused its discretion and erred in making a 

finding of fact that the child expressed a clear desire to 

maintain the existing custody arrangements.

2. The trial court abused its discretion and erred in making a 

finding of fact that the existing schedule remains in the child’s 

best interests.

3. The trial court abused its discretion and erred in making a 

finding of fact that Mother continues to struggle with alcohol 

related issues when no testimony or other evidence 

substantiating such a finding was provided at trial.
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4. The trial court abused its discretion and erred as a matter of

law in finding Mother in contempt for making a telephone call 

on Thanksgiving that was 45 minutes in length when the child 

herself contacted Mother and her family from Father’s cell 

phone.

5. The trial court abused its discretion and erred as a matter of

law in finding Mother in contempt by missing one of the coparenting counseling appointments as no notice had been

provided to Mother that the missed appointment was a basis

for a contempt allegation and finding.

6. The trial court abused its discretion and erred in maintaining a 

custody schedule which does not maximize time between the 

parties as the record establishes that Father works in Baltimore 

during the school year on Mondays, Tuesdays, and

Wednesdays which coincide with Mother’s days off of work.

7. The trial court abused its discretion and erred by making

findings of fact that Mother’s family members were

inappropriate caregivers and/or support system as a result of 

DUI charges (not convictions).

Mother’s Brief at 6-8.

2

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A. 

§ 5321-5340, our standard of review is as follows:

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

and our standard is abuse of discretion. We must accept findings 

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility and 

weight of the evidence, we must defer to the presiding trial judge 

who viewed and assessed the witnesses first-hand. However, we 

are not bound by the trial court’s deductions or inferences from 

its factual findings. Ultimately, the test is whether the trial court’s 

conclusions are unreasonable as shown by the evidence of record. 

We may reject the conclusions of the trial court only if they involve 

____________________________________________

2

In the argument section of her brief, Mother combines her second, third, 

sixth, and seventh issues.
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an error of law, or are unreasonable in light of the sustainable 

findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

We have stated:

The discretion that a trial court employs in custody matters should 

be accorded the utmost respect, given the special nature of the 

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

of the parties concerned. Indeed, the knowledge gained by a trial 

court in observing witnesses in a custody proceeding cannot 

adequately be imparted to an appellate court by a printed record. 

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

In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this Court 

explained what constitutes an abuse of discretion.

Although we are given a broad power of review, we are 

constrained by an abuse of discretion standard when evaluating 

the court’s order. An abuse of discretion is not merely an error of 

judgment, but if the court’s judgment is manifestly unreasonable 

as shown by the evidence of record, discretion is abused. An abuse 

of discretion is also made out where it appears from a review of 

the record that there is no evidence to support the court’s findings 

or that there is a capricious disbelief of evidence.

Id. at 18-19 (quotation and citations omitted).

Further, this Court has stated: “[a]n abuse of discretion is not merely 

an error of judgment; if, in reaching a conclusion, the court overrides or 

misapplies the law, or the judgment exercised is shown by the record to be 

either manifestly unreasonable or the product of partiality, prejudice, bias or 
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ill will, discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 

111 (Pa. Super. 2007) (quotation omitted).3 

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

the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Therefore,

the Act provides that, upon petition, a trial court may modify a custody order 

if it serves the best interests of the child. See 23 Pa.C.S.A. § 5338. 

Section 5328(a) sets forth the best interest factors that the trial court 

must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). 

Trial courts are required to consider “[a]ll of the factors listed in section 

5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 

652 (Pa. Super. 2011) (emphasis in original). 

Section 5328(a) of the Act provides 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:

____________________________________________

3 Mother argues that the trial court provided the incorrect standard of review 

in its opinion. See Mother’s Brief at 26-27. The trial court appropriately 

paraphrased what constitutes an abuse of discretion. See Trial Court Opinion, 

9/4/19, at 3 (“An abuse of discretion is more than just an error in judgment 

and, on appeal, the trial court will not be found to have abused its discretion 

unless the record discloses that the judgment exercised was manifestly 

unreasonable, or the results of partiality, prejudice, bias or ill-will.”). Further, 

this issue is immaterial as we are applying the appropriate standard of review 

herein. 
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(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.

(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.
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(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.A. § 5328.

Further, we have explained as follows:

Section 5323(d) provides that a trial court “shall delineate the 

reasons for its decision on the record in open court or in a written 

opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, “section 

5323(d) requires the trial court to set forth its mandatory 

assessment of the sixteen [Section 5328(a) custody] factors prior 

to the deadline by which a litigant must file a notice of appeal.” ... 

In expressing the reasons for its decision, “there is no required 

amount of detail for the trial court’s explanation; all that is 

required is that the enumerated factors are considered and that 

the custody decision is based on those considerations.” A court’s 

explanation of reasons for its decision, which adequately 

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

A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014) (citations omitted).

In her first issue, Mother contends that the trial court erred in

concluding, “[C]hild expressed a clear desire to maintain the existing custody 

arrangement. . . .” See Mother’s Brief at 13. Mother asserts that Child 

expressed ambivalence about the current physical custody schedule and 
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stated “she wanted the decision to be made by the adults. . . .” See id. at 

14-15. Additionally, Mother claims that the court failed to ask appropriate 

questions of Child. See id. at 15. Mother further argues that, based on the 

court’s improper determination of Child’s preference, the court erred in 

weighing custody factor seven, the well-reasoned preference of the child, 

based on the child’s maturity and judgment, in favor of Father. See id. at 20-

21.

Mother highlights the following portion of the court’s in camera

questioning of Child:

THE COURT: . . . Well, [Child], I think, and please tell me if I’m 

wrong, but I think the current arrangement where you spend a 

little more time at dad’s house than you do at mom’s, I think that 

has been in effect for a little less than a year. Do I have that about 

right?

[Child]: Yeah.

THE COURT: How do you like that?

[Child]: I mean, it’s good.

THE COURT: Anything you would change in it?

[Child]: Not really. I mean, it’s good. I mean, it’s fun and not that 

different. It just doesn’t feel that different, but you guys can just 

decide.

THE COURT: Well, I appreciate that. You don't have any 

suggestions for me as to anything to change?

[Child]: Not really. I mean, it’s like good and like I want you guys 

to decide.

N.T., 7/23/19, at 13-14.
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Our standard of review gives great deference to the trial court who 

viewed and assessed Child first-hand. See C.R.F. v. S.E.F., 45 A.3d at 443. 

Contrary to Mother’s argument, the trial court questioned Child appropriately 

and obtained Child’s opinions regarding the current custody schedule. Based 

upon this testimony, the trial court concluded, “[Child] very clearly said she 

did not want the schedule changed.” See N.T., 7/23/18, at 132. Upon a 

review of the record, and in consideration of the deference afforded the trial 

court, we discern no abuse of discretion with regard to the trial court’s 

conclusion. Accordingly, Mother’s first issue does not merit relief. 

Although Mother lists issues three and seven separately in her statement 

of questions involved, she incorporates them into her brief as part of her 

second issue. We discuss them separately from Mother’s general objections to 

the trial court’s analysis of the custody factors for ease of disposition. Mother 

faults the court for mentioning Mother’s alcohol use, because, “[a]lthough the 

court indicated that it was not considering Mother’s inability to overcome her 

abuse of alcohol is a factor, it is readily apparent that in fact it did, otherwise 

there would have been no need to mention it at all.” Mother’s Brief at 25-26. 

Further, Mother asserts that the trial court improperly considered DUI charges 

incurred by Mother’s sister-in-law and Child’s maternal grandmother that did 

not result in convictions. See id. at 18. Mother argues that the court found 

her to be “irresponsible” based on Mother utilizing these individuals as 

caregivers. See id. 
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The trial court addressed these issues as follows:

It is denied that the [c]ourt abused its discretion and erred 

in making a finding of fact that Mother continues to struggle with 

alcohol related issues when no testimony or other evidence 

substantiating such a finding was provided at trial. Mother 

mischaracterizes the [c]ourt’s statement that the [c]ourt did not 

“believe that mother has completely overcome her abuse of

alcohol.” The [c]ourt made no such finding of fact, but rather was 

expressing the [c]ourt’s impression of the conflicting testimony 

regarding Mother’s continued alcohol abuse presented at the 

custody trial. Furthermore, as shown by the [c]ourt’s statement 

with respect to Factor 14, the history of drug and alcohol abuse, 

on the record the [c]ourt specifically stated[,] “we don’t believe 

that Mother has completely overcome her abuse of alcohol. [B]ut, 

we really didn’t have anything solid to base that on so we are not 

considering [it as] a factor.” Thus, the [c]ourt acknowledged that 

there was no solid testimony or other evidence presented to 

support the allegation against Mother, and therefore no finding of 

fact as to Mother’s alleged alcohol abuse was put on the record. 

Therefore, the [c]ourt did not abuse[] its discretion and err in 

making a finding of fact that Mother continues to struggle with 

alcohol related issues, because the [c]ourt did not make a finding 

of fact on the record that Mother does in actuality have an alcohol

related issue.

***

It is denied that the [c]ourt abused its discretion and erred 

in making a finding of fact that Mother’s family members were 

inappropriate caregivers and/or support system as a result of DUI 

charges. Again, Mother mischaracterizes the [c]ourt’s description 

of the [m]other’s extended family members. The [c]ourt made no 

finding of fact that Mother’s extended family members were 

inappropriate as caregivers for the Child, but rather the [c]ourt 

stated an observation that several members of Mother’s extended 

family members, whom could possibly provide care for the Child, 

had a history of alcohol abuse. While the [c]ourt made no finding 

of fact as to the appropriateness of these family members as 

caregivers for the Child, the [c]ourt did express an opinion that it 

was an example of Mother’s less than perfect decision making. 

However, when going through the custody factors on the record, 

the [c]ourt also stated that: “[B]oth parties have done a 

commendable job of arrang[ing] for day care when necessary, 
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having family provide that day care when it is necessary and that 

really both parties are doing that so well that is a neutral factor.” 

The [c]ourt did not weigh the negative traits of Mother’s extended 

family against her in deciding the custody schedule. Therefore, 

the [c]ourt did not abuse[] its discretion and err in making a 

finding of fact that Mother’s family members were inappropriate 

caregivers and/or support system as a result of DUI charges, 

because the [c]ourt did not make such a finding of fact, but rather 

was expressing an opinion and did not give weight to that opinion 

against Mother.

Trial Court Opinion, 9/4/19, at 9-10, 14 (citations to the record omitted).

Here, Mother speculates that the trial court considered her alcohol abuse 

and her family’s history of DUIs against her.4 Yet, the trial court expressly 

disclaimed any such reliance. Given the trial court’s representation that it did 

not weigh these issues against Mother, we conclude that Mother’s issues lack 

merit. 

We now turn to Mother’s overarching argument, contained in her second 

issue, that the trial court made a litany of errors in considering, analyzing, 

and weighing the custody factors. Mother contends that the court engaged in 

a “tortured analysis with regard to the custody factors to reach its conclusion 

that the existing schedule remained in the child’s best interests.” See

Mother’s Brief at 16. Further, Mother asserts, generally, that the trial court’s 

award of custody is inconsistent with its findings that Child is well adjusted 

and doing well. See id. at 20-23.

____________________________________________

4 Mother testified that various family members “have” or “has” DUIs. See id.

at 72-74. While Mother argues that these are charges rather than convictions, 

this is not clear from the record. 
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With respect to custody factor four, the need for stability and continuity 

in the child’s education, family life and community life, Mother argues that she

was justifiably late getting Child to school on two occasions. See id. at 17. 

Mother further assails the trial court for suggesting that Mother “utilizes people 

in her family who have DUI’s,” for concluding that Mother “abused” her phone 

calls with Child, and for considering Mother’s failure to attend a co-parenting 

counseling session. Id. at 18-19. Moreover, Mother contends that the court 

improperly faulted Mother for not attending Child’s dance recital because the 

recital occurred when Mother did not have custody. See id. at 19-20.

Mother further claims that the court erred in considering custody factor 

nine, which party is more likely to maintain a loving, stable, consistent and 

nurturing relationship with the child adequate for the child’s emotional needs. 

See id. at 21. Mother argues that the court erred in finding this factor favored 

Father based on its conclusion that, although Mother is loving towards Child 

and takes care of her emotional needs, Father acts as a “super dad.” Id. 

Further, Mother asserts that Father is not as available to care for Child as 

Mother due to his work schedule.5 See id. at 21-23. 

____________________________________________

5 For similar reasons, Mother argues that the trial court erred in determining 

custody factor ten, which party is more likely to attend to the daily physical, 

emotional, developmental, educational and special needs of the child, favored 

Father. See Mother’s Brief at 23.
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Moreover, Mother faults the trial court for determining that custody

factor eleven, the proximity of the residences of the parties, is “not a factor.” 

See id. at 23. Mother asserts that the trial court failed to consider that Mother 

now resides in the same school district as Father. See id. Mother further 

argues that the court correctly determined that custody factor thirteen, the 

level of conflict between the parties and the willingness and ability of the 

parties to cooperate with one another, is neutral. See id. at 24. However, 

Mother argues that this factor being neutral strongly suggests an equal shared 

custody arrangement. See id.6 

We conclude that the record supports the trial court’s findings of fact 

and conclusions of law. Mother testified that she works for her brother and 

that her work schedule is flexible enough that she does not work when she 

has custody of Child. See N.T., 7/23/19, at 26-33. Mother acknowledged that 

____________________________________________

6 With respect to custody factor six, the child’s sibling relationships, Mother 

asserts that the trial court erred because it considered Child’s relationship with 

her stepsister, who resides with Father and Stepmother. See Mother’s Brief 

at 20. Mother claims that there is no precedent extending this factor to 

stepsiblings. See id. However, this Court has previously considered 

stepsibling and quasi-sibling relationships in assessing a child’s best interests. 

See M.E.V. v. F.P.W., 100 A.3d 670, 678 (Pa. Super. 2014) (“Plainly all of 

the sibling, step-sibling, and quasi-sibling relationships in this case have either 

emerged or evolved since the trial court’s 2012 order was entered in ways 

that bear materially on the Children’s best interests.”). Moreover, the 

comment to Section 5328 provides that “[s]ubsection (a)(6) is intended to 

include full-blood siblings, half-blood siblings, step-siblings and adoptive 

siblings.” Accordingly, the trial court did not err in considering Child’s 

relationship with her stepsibling.
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Child was late for school a number of times during second grade, but testified 

that, after September 2018, Child was late for school during her custody time

on only two occasions due to traffic issues and car problems. See id. at 37-

38. 

Mother testified that Child is engaged in extracurricular activities 

including dance, gymnastics, and kickboxing. See id. at 48-49. Mother 

conceded that she missed Child’s dance recital. See id. at 71. Mother was 

uncertain whether the dance recital occurred during her custody time and she 

could not take time off work, or if the dance recital fell on Father’s custody 

time. See id. at 71-72.

Mother testified that both parents performed equal parental duties, 

noting that Child did her homework during both her and Father’s custody time, 

and that both attended Child’s medical appointments. See id. at 39-40, 58. 

Mother further testified that both she and Father were capable of providing a 

loving, stable, consistent and nurturing relationship with Child. See id. at 61. 

With respect to co-parenting counseling, Mother believed that it was helpful, 

but acknowledged that she failed to attend one session because she forgot 

about the appointment. See id. at 63-66, 74-75. Mother asserted that Child 

preferred a shared physical custody schedule, claiming that Child informed her 

that she preferred such a schedule. See id. at 58-59. 

Father testified that he works in Baltimore as an information technology

manager and essentially sets his own schedule. See id. at 80. Father works 
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from home on Thursday and Friday. See id. at 80-81. On Monday through 

Wednesday, Father leaves home at 5:00 a.m. and returns between 5:30 and 

6:00 p.m. See id. at 102. Child returns from school between 3:00 and 3:30 

p.m. See id. at 103.

Father testified that, before Mother filed her petition to modify custody,

there were a number of times that Child did not do her homework during 

Mother’s custodial time. See id. at 84-85. Father further testified that Child 

was late for school four times after September 2018. See id. at 90. Three of 

those occasions occurred during Mother’s custodial time and one occurred 

during Father’s custodial time, when his mother was five minutes late getting 

Child to school after a two-hour weather delay. See id. at 90-91. 

Father also complained that Mother called Child for excessively long 

times, including when Mother called and FaceTimed Child on Thanksgiving, 

interrupting the family dinner. See id. at 91-92.

Further, Father testified that he signed Child up for kickboxing and 

gymnastics, as well as a summer camp. See id. at 82-83. After Mother filed 

the petition to modify custody, Father testified that Mother attempted to be 

“super mom.” Father explained that Mother then ensured Child was “[g]etting 

baths on a regular basis, things like that. All of a sudden in almost nine years 

she wasn’t in any extracurricular activities and all of a sudden she is in dance. 

Just like trying to be super mom, but where was it at for the past nine years.” 

See id. at 85. Father asserted that he is “a loving father. I do whatever I can 
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for [Child]. I am open to any of her concerns and things like that. . . .” See

id. at 90. 

Here, the trial court, in a comprehensive fashion, considered and 

weighed all relevant factors. In essence, Mother questions the trial court’s 

conclusions and assessments and seeks to have this Court re-find facts, reweigh evidence, and/or re-assess credibility to her view of the evidence. 

We cannot do this absent an abuse of discretion. See C.R.F., 45 A.3d 

at 443; see also E.R., 129 A.3d at 527. As we stated in King v. King, 889 

A.2d 630, 632 (Pa. Super. 2005):

It is not this Court’s function to determine whether the trial court 

reached the ‘right’ decision; rather, we must consider whether, 

‘based on the evidence presented, [giving] due deference to the 

trial court’s weight and credibility determinations,’ the trial court 

erred or abused its discretion. . . .

(citation omitted). The trial court carefully and appropriately considered each

custody factor. Upon review, we conclude that the trial court’s conclusions are 

supported by the record, and we discern no error of law or abuse of discretion. 

Accordingly, second issue on appeal merits no relief.

In her fourth and fifth issues, Mother challenges the trial court’s decision 

to hold her in contempt for her failure to appear at a co-parenting counseling 

session, and for calling Child for forty-five minutes on Thanksgiving. Mother 

asserts that the trial court violated her due process rights by holding her in 

contempt, sua sponte, for her failure to appear at one co-parenting counseling 

session. See Mother’s Brief at 32-34. Moreover, Mother asserts that the trial 
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court erred in holding her in contempt for the forty-five minute phone call on 

Thanksgiving because the order in question contained no time frame for the 

phone calls. See id. at 28-32.

As is the case with child custody orders in general, we review a contempt 

order in a child custody case pursuant to an abuse of discretion standard of 

review. Garr v. Peters, 773 A.3d 183, 189 (Pa. Super. 2001). Our child 

custody statute provides as follows with respect to contempt of a custody 

order and the award of sanctions. 

(g) Contempt for noncompliance with any custody order.—

(1) A party who willfully fails to comply with any custody order 

may, as prescribed by general rule, be adjudged in contempt. 

Contempt shall be punishable by any one or more of the 

following:

(i) Imprisonment for a period of not more than six months.

(ii) A fine of not more than $500.

(iii) Probation for a period of not more than six months.

(iv) An order for nonrenewal, suspension or denial of 

operating privilege under section 4355 (relating to denial or 

suspension of licenses).

(v) Counsel fees and costs.

(2) An order committing an individual to jail under this section 

shall specify the condition which, when fulfilled, will result in 

the release of that individual.

23 Pa.C.S.A. § 5323(g).

“As each court is the exclusive judge of contempts against its process, 

we will reverse an order of contempt only upon a showing of a plain abuse of 
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discretion.” In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super. 

2004) (citation omitted). 

We further explained in In re Contempt of Cullen:

To be punished for contempt, a party must not only have violated 

a court order, but that order must have been definite, clear, and 

specific—leaving no doubt or uncertainty in the mind of the 

contemnor of the prohibited conduct. Because the order forming 

the basis for civil contempt must be strictly construed, any 

ambiguities or omissions in the order must be construed in favor 

of the defendant. In such cases, a contradictory order or an order 

whose specific terms have not been violated will not serve as the 

basis for a finding of contempt. To sustain a finding of civil 

contempt, the complainant must prove certain distinct elements: 

(1) that the contemnor had notice of the specific order or decree 

which he is alleged to have disobeyed; (2) that the act constituting 

the contemnor’s violation was volitional; and (3) that the 

contemnor acted with wrongful intent. A person may not be held 

in contempt of court for failing to obey an order that is too vague 

or that cannot be enforced.

When holding a person in civil contempt, the court must undertake 

(1) a rule to show cause; (2) an answer and hearing; (3) a rule 

absolute; (4) a hearing on the contempt citation; and (5) an 

adjudication of contempt....

Fulfillment of all five factors is not mandated, however. [T]he 

essential due process requisites for a finding of civil contempt are 

notice and an opportunity to be heard.

Id. at 1210-11 (internal citations, quotation marks, and emphasis omitted).

“[W]hen the contempt proceedings are predicated on a violation of a 

court order that followed a full hearing, ‘due process requires no more than 

notice of the violations alleged and an opportunity for explanation and 

defense.’” Diamond v. Diamond, 792 A.2d 597, 601 (Pa. Super. 2002) 

(citation omitted).
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Mother argues that the underlying order states, “[b]oth parties are 

expected to use common sense in scheduling telephone calls to talk to the 

child[,]” but does not provide a set amount of time and is vague as to what is 

permissible or impermissible. See id. Mother also challenges the trial court’s 

factual conclusion that the call in question occurred on Thanksgiving. See id. 

In response, Father argues that Mother made excessive phone calls, including 

on Thanksgiving, and, further, that the trial court appropriately held Mother 

in contempt sua sponte. See Father’s Brief at 14-19.

The full text of the applicable section of the order is:

Both parties are expected to use common sense in scheduling 

telephone calls to talk to the child. Both parties are hereby 

directed to refrain from preventing the parent who may be calling 

from talking to the child, or preventing the child from calling the 

other parent, provided that the phone calls are not excessively 

frequent nor too long in duration that they disrupt their schedule.

Order, 10/3/18, at 8.

Based upon our review of the record and the applicable law, we conclude 

that the trial court erred in holding Mother in contempt. With regard to phone 

calls, the order in question required the parties to use “common sense” in 

scheduling phone calls, and required the custodial parent to permit such calls, 

“provided that the phone calls are not excessively frequent nor too long in 

duration that they disrupt their schedule.” See Order, 10/3/18, at 8. Here, 

as the non-custodial parent, Mother’s responsibility was to use her “common 

sense” with respect to phone calls with Child. Such a provision is not “definite, 

clear, and specific—leaving no doubt or uncertainty in the mind of the 
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contemnor of the prohibited conduct.” See In re Contempt of Cullen, 849 

A.2d at 1210. Accordingly, the trial court erred by holding Mother in contempt 

for the Thanksgiving phone call.

However, the court also found Mother in contempt for missing the coparenting session. The court did not credit Mother’s excuse for missing the 

meeting. As a result, the court found that Mother’s unexcused absence from 

the meeting was sufficient basis to find Mother in contempt of the custody 

order.

Nonetheless, the trial court lacked the authority to hold Mother in 

contempt sua sponte without providing Mother notice that missing the 

meeting was an alleged basis for contempt. See Sutch v. Roxborough 

Mem’l Hosp., 142 A.3d 38, 70 (Pa. Super. 2016) (“If contempt sanctions are 

based on the violation of a court order, then due process requires notice of 

the violations alleged ...”). Father’s petition does not assert the failure to 

attend the co-parenting class as a basis for finding Mother in contempt. See 

Father’s Brief at 19.

Under these circumstances, we conclude Mother was not on notice that 

her failure to appear for one co-parenting session could be the basis for a 

finding of contempt. Accordingly, the trial court lacked the power to hold 

Mother in contempt for her failure to attend the session. 

Custody order affirmed. Contempt order vacated. Jurisdiction 

relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/28/2020