J-S08019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.G.C.

v.

K.R.H. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1460 MDA 2020

Appeal from the Order Entered October 14, 2020,

in the Court of Common Pleas of Dauphin County,

Civil Division at No(s): 2014-CV-11133-CU.

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 05, 2021

Following a consolidated hearing on cross-petitions for contempt and 

cross-petitions for custody modification, K.R.H. (Father) appeals the trial 

court’s decision to award primary physical custody of the parties’ 7-year-old

son K.H. (Child) to S.G.C. (Mother). Mother had previously exercised primary 

physical custody of the Child for most of the preceding five years. At the 

commencement of the instant litigation, however, the parties agreed to share

custody on an interim basis pending a final hearing - about four months. 

Ultimately, the court denied all requests for contempt, restored Mother’s

primary physical custody, and ordered the parties to mediate prior to engaging 

in any future litigation. Father only appeals the custody award and mediation 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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requirement. After careful review, we affirm the restoration of Mother’s 

primary custody, but we vacate the order’s provision requiring mediation.

The record discloses the relevant factual and procedural history: The 

parties separated in late 2014 and settled their custody dispute by consent 

order in May 2015, whereby Mother received primary physical custody and 

Father partial physical custody. Specifically, the parties agreed Father would 

exercise physical custody every Wednesday and every weekend. The parties 

shared legal custody at all times throughout this case. Following the 2015 

consent agreement, however, Father stopped exercising his custodial rights

and only saw Child “here and there.” See N.T., 9/29/20, at 10. However, 

Mother pushed for a more consistent schedule, and so the parties informally 

agreed Father would see Child on alternating weekends. Id. The informal 

arrangement began either late 2015 or 2016, when Child was three years old, 

and lasted until Spring 2020.

In April 2020, Mother and Child were exposed to COVID-19, so Mother 

withheld Child while they quarantined without first seeking Father’s input. In 

May, Father withheld custody to make up his lost time. These actions 

precipitated cross-contempt petitions, and evidently cross-petitions to modify 

custody.1 Following a pre-hearing conciliation, the parties agreed, on an 

____________________________________________

1 At the hearing, the court began with Mother’s case-in-chief as she was 

moving party seeking contempt and modification. Counsel for Father averred, 

“I think they both filed custody technically, but...” N.T. at 5. As the docket 

does not contain an explicit petition for modification filed on behalf of Father, 

Father’s cross-petition was presumably treated as a petition for contempt and 

modification. The discrepancy is irrelevant to our disposition.
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interim basis, to share physical custody (on a week-on-week-off schedule) 

until the court issued a final custody order.

The court held a consolidated contempt and modification hearing, via 

videoconference, on September 29, 2020. The court denied the crosspetitions for contempt; although the court was troubled by the unilateral 

decisions of the parties, the court opined Mother was right to quarantine, while 

Father was entitled to make-up time.2 Neither party appealed the contempt 

decisions. The court also denied Father’s request to finalize the interim shared 

custody arrangement. Instead, the court reverted custody back to the 

primary/partial arrangement, in Mother’s favor. But in doing so, the court 

increased Father’s partial custody. Specifically, the court awarded Father 

some form of custodial time every weekend: in Week A, Father’s custody 

would last from Friday morning until Saturday evening; in Week B, Father’s 

custody would last from Friday morning until Sunday evening. Finally, the 

court ordered the parties to mediate with a paid professional prior to litigating 

future disputes. Father timely filed this appeal.

He presents the following issues, which we reorder for ease of 

disposition:

1. Whether the trial court erred as a matter of law and 

abused its discretion when it restored primary physical 

custody to Mother instead of continuing the shared 

____________________________________________

2 We note that make-up time is not an authorized sanction for contempt under 

23 Pa.C.S.A. § 5323(g)(1)(i)-(v). See also G.A. v. D.L., 72 A.3d 264, 269 

(Pa. Super. 2013).
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physical custody scheduled that was in the best 

interests of the child?

2. Whether the trial court erred as a matter of law and 

abused its discretion when it ordered that the parties 

must file a certificate of having participated in 

mediation prior to filing a petition for modification to 

request a new schedule?

3. Whether the trial court showed a definite biased 

against Father’s interests?

4. Whether the trial court’s custody order is not 

supported by competent evidence in the record?

5. Whether the trial court erred/abused its discretion by 

improperly weighing the custody factors in favor of 

Mother but contrary to the best interest of the Child?

Father’s Brief at 4.

We begin by observing our well-settled scope and standard of review 

concerning custody matters:

In reviewing a custody order, our scope is 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.

S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
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In his first issue, Father argues the court erred when it reverted custody 

back to Mother’s primary care, even though the parties had been sharing 

custody for several months. Father’s Brief merely lists the court’s findings

and faults the trial court for not “clearly explain[ing] why it decided to remove 

[Child] from 50/50 equal custody and restore primary physical custody to 

Mother.” See generally Father’s Brief 8-11. But Father does not specify how 

the court erred, nor could the trial court decipher Father’s contention. T.C.O., 

12/7/20, at *3. Father cites no legal authority and only cites to the trial 

court’s opinion, in contravention of our Rules of Appellate Procedure. See

Pa.R.A.P. 2119(a) (relating to contents of appellate briefs). “When a court 

has to guess what issues an appellant is appealing, that is not enough for 

meaningful review.” See, e.g., C.H.L. v. W.D.L., 214 A.3d 1272, 1278 (Pa. 

Super. 2019) (citation omitted). If Father suggests the court’s findings do not 

support a primary/partial arrangement, Father has already preserved that 

contention in his fourth and fifth appellate issues, and we address his

arguments below.

If, on the other hand, Father argues the court did not adequately 

delineate its reasons for the award, we disagree. When deciding a petition to 

modify custody, a court must conduct a thorough analysis of the best interests 

of the child based on the relevant factors as provided by the Child Custody 

Act. A.V. v. S.T., 87 A.3d 818, 822 (Pa. Super. 2014) (citation omitted); see 

also 23 Pa.C.S.A. § 5328(a)(1)-(16). Furthermore, Section 5323(d) provides 

that a trial court “shall delineate the reasons for its decision on the record in 
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open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). Section 

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

custody factors prior to the deadline by which a litigant must file a notice of 

appeal. A.V., 87 A.3d at 823 (citation omitted). 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.” Id. (citation 

omitted). A court’s explanation of reasons for its decision, which adequately 

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

Here, the trial court satisfied its obligation to delineate its reasons when 

it issued contemporaneously with its custody award a memorandum itemizing

its Section 5328(a) findings. See Memorandum, 10/14/20, at 1-9. Following 

Father’s notice of appeal and concise statement of errors complained of on 

appeal, the court then issued its opinion pursuant to Pa.R.A.P. 1925(a). See 

Trial Court Opinion (T.C.O.), 12/7/20, at 1-6* (not paginated). As Father 

observes, many of the custody findings favored neither parent, and the court’s 

level of detail was sometimes minimal. Still, the court’s ultimate rationale was

sufficiently clear; the court restored Mother’s primary custody, because it was 

in Child’s best interests to regain the stability and continuity he enjoyed in her 

care. See Memorandum at 9. Even if the court’s findings were not clear, the 

appropriate remedy would be to remand for a supplemental opinion. See 

C.M. v. M.M., 215 A.3d 588, 594 (Pa. Super. 2019). Contrary to Father’s 

position, such an error is not necessarily a basis for reversing the trial court’s 
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ultimate award. Nor can it be said, here, that the court’s minimalistic findings 

impeded Father’s ability to thoroughly appeal the court’s decision. Notably, 

Father preserved his challenge to the court’s substantive decision in his fourth 

and fifth appellate issues. Thus, we conclude Father’s first issue is without 

merit.

In his second appellate issue, Father contends the court erred when it 

ordered the parties to mediate, with a trained mediator, “prior to engaging in 

[any future custody] litigation.” See Father’s Brief at 11-12; see also Order 

of Court, 10/14/20, at ¶36 (Paragraph 36). Because we must interpret our 

statutes and rules of procedure to resolve this issue, we note the applicable 

standard of review is de novo, and our scope of review is plenary. C.H.L. v. 

W.D.L., 214 A.3d at 1280 (citation omitted).

Paragraph 36 of the custody order provides, verbatim:

Any proposed changes to this order which cannot be agreed 

upon or any disputes about the interpretation or practical 

application of this order and any alleged breaches of this 

order shall, prior to engaging in litigation, first be attempted 

to be resolved through mediation with a trained mediator, 

the costs to be shared equally between the parents. Free 

mediation is available for self-represented litigants through 

the Neighborhood Dispute Settlement at (717) 233-8255. 

If a parent is represented by a pro bono lawyer, they are 

eligible to request free mediation through the Dauphin 

County Bar Association Civil Dispute Resolution Program at 

(717) 232-7536.

Order of Court, 10/14/20, at ¶36.

The trial court maintained its inclusion of Paragraph 36 was authorized 

by our Rules of Civil Procedure, which govern “voluntary mediation in custody 
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actions.” See Pa.R.C.P. 1940.1 – 1940.9; see also T.C.O. at *4-5. The court 

opined that the Rules allow for court-ordered mediation, “at least as far as an 

original orientation session; continuation of mediation is voluntary.” Id. at *5. 

The court concludes it “has not required the parties in this case or any other 

to attend or complete the mediation prior to the filing of a petition for 

modification.” Id. In response to Father’s argument, Mother does not take a 

position on mandatory mediation. Rather, she is satisfied with the trial court’s 

explanation that it did not intend to order anything beyond the initial 

orientation session. However, Mother argues in the alternative, that we 

should strike the offending Paragraph 36 if we determine it is erroneous. See 

Mother’s Brief at 3.

In order to promote the resolution of custody disputes, without the 

parties having to resort to adversarial litigation, the Domestic Relations Code 

authorizes the establishment of a mediation program for actions brought 

under the Child Custody Act. 23 Pa.C.S.A. § 3901(a). “When a program has 

been established [...], the court may order the parties to attend an 

orientation session to explain the mediation process. § 3901(b) (emphasis 

added). The Pennsylvania Rules of Civil Procedure define “orientation session” 

as “the initial process of educating the parties on the mediation process so 

that they can make an informed choice about continued participation in 

mediation. This process may be mandated by the court and may be structured 

to include either group or individual sessions. An orientation session may also 

include an educational program for the parents and children on the process of 
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divorce and separation and the benefits of mediation in resolving custody 

disputes.” Pa.R.C.P. 1940.2.

Thereafter, “should the parties consent to mediation, the court may 

order them to mediate such issues as it may specify.” 23 Pa.C.S.A. § 3901(b) 

(emphasis added). See also Pa.R.C.P. 1940.3(c) (“Following the orientation 

session and with the consent of the parties, the court may refer the parties 

to mediation.”) (emphasis added). The court may assess additional costs of 

mediation on either party. 23 Pa.C.S.A. § 3902(b). 

Finally, “[t]he court shall adopt local rules for the administration of the 

mediation program....” § 3901(c)(1). In Dauphin County, each petition for 

modification or contempt must include a template order for an “educational 

seminar,” i.e., the orientation session. See D.C.C.R. 1915.3.1(b)(1); 

1915.3.2(b)(1); 1915.15(c). Furthermore, “[i]n all Custody actions, the 

parties shall complete a four-hour educational seminar (Seminar for Families 

in Change and Conflict) if a party has not attended the Seminar in the prior 

twelve (12) months and in such other cases as the Court my order.” D.C.C.R. 

1930(a).

In its Rule 1925(a) opinion, supra, the trial court accurately 

summarized its limited authority to promote mediation. The trial court 

acknowledged it may only order the parties to attend the orientation session 

to learn about mediation. And we add that a court may nevertheless order

the session “at any time upon...the court’s own initiative,” notwithstanding the 
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wisdom or futility of making the parties repeat the session.3 Pa.R.C.P. 

1940.3(a); see also D.C.C.R. 1930(a) (“[T]he parties shall complete [the] 

seminar...in such other cases as the Court may order.”); and see D.C.C.R.

1930(c) (“In a Petition for Contempt or a Petition for Special Relief (Emergency 

Custody) or other similar Custody actions, the parties shall attend the Seminar 

as ordered by the Court.”). But this is where a court’s authority stops. As the 

learned trial court recognized in its Rule 1925(a) opinion, the court may order 

mediation after the orientation session, but only if the parties consent. 

Yet, the actual text of Paragraph 36 extends far beyond what is 

allowable. See Order of Court at ¶36. We accept entirely the trial court’s

word that it did not intend for such ramifications, as well as its guarantee that 

it had never ordered any parties to mediate in the past. But Paragraph 36 did 

not merely direct the parties to attend the orientation program upon a future 

petition for modification or contempt (something which is already provided for 

in the Dauphin County Local Rules of Procedure). Rather, Paragraph 36 

ordered the parties to employ a mediator (at their own expense if they did not 

forgo legal representation). And it ordered the parties to first attempt to 

resolve their disputes privately before seeking any relief from the court. As 

written, either party may willfully disobey the custody order and then force 

the expense of mediation upon the other party, before the aggrieved may 

seek legal recourse. As written, neither party may bring any custody motion, 

____________________________________________

3 Of course, the court may not order the orientation session if either a party 

or the child has been subjected to domestic violence. Pa.R.C.P. 1940.3(b).
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emergency or otherwise, without first seeking justice elsewhere, via mediation 

from a third-party. Until then, Paragraph 36 locks the courthouse doors. This

was an error.4

Therefore, we vacate Paragraph 36 of the court’s custody order. While 

we agree with Father that the text is erroneous, Mother is correct that the 

remedy is simply to strike the provision. No remand is warranted because, as 

the trial court observed, it only meant to order what was already provided for 

by the Rules of Procedure. The remedy is not to reverse the trial court’s entire 

award. 

In Father’s third issue, we consider whether the court exhibited a 

“definite bias” against Father. We review challenges to a court’s impartiality 

for an abuse of discretion. See Lewis v. Lewis, 234 A.3d 706, 722 (Pa. 

Super. 2020).

The appearance of bias or prejudice can be as damaging to 

public confidence in the administration of justice as the 

____________________________________________

4 Although Father is correct on this issue, we caution the parties not to 

foreclose mediation in the future. We underscore the purpose of alternative 

dispute resolution, which is invaluable in custody disputes. As the Explanatory 

Comment to these Rules provides: “Courts are ill-equipped to mandate 

particular visitation schedules and custodial arrangements, the wisdom of 

which depend on the situations of the parents and children rather than on 

legal rules.” The potential for successful co-parenting is so often undercut by 

the adversarial nature of family court. No one knows their children better 

than the parents, which is why our Judiciary, Legislature, and Rules of

Procedure encourage the litigants to resolve their custody disputes without 

court intervention. But when the parents cannot agree, Pennsylvanians have 

established, through legislation, a hyper-specific process for determining the 

best interests of the child, while simultaneously protecting the rights of the 

parents. Courts may not foreclose that process.
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actual presence of bias or prejudice. However, simply 

because a judge rules against a party does not establish bias 

on the part of the judge against that party. Along the same 

lines, a judge’s remark during a hearing in exasperation at 

a party may be characterized as intemperate, but that 

remark alone does not establish bias or partiality.

Id. (internal citations omitted).

“Discretion is abused when the course pursued represents not merely 

an error of judgment, but where the judgment is manifestly unreasonable or 

where the law is not applied or where the record shows that the action is a 

result of partiality, prejudice, bias or ill will.” Commonwealth v. Goldman, 

70 A.3d 874, 879 (Pa. Super. 2013) (quoting Commonwealth v. Widmer, 

744 A.2d 745, 753 (Pa. 2000)).

Instantly, Father contends the court displayed bias against Father 

because “[n]othing in the record support[ed] the trial court’s decision to 

remove the [C]hild from the 50/50 custody of his parents where he was 

thriving and doing well.” See Father’s Brief at 12. Father argues the court did 

not make factual findings against him, but weighed each factor equally upon 

the parents. Id.

To the contrary, the court did make findings against Father and did not

weigh the factors evenly, as we discuss in Father’s next issues. But even if 

the court erred, such errors do not equate to bias. Quite obviously, Father’s 

allegation stems from the court’s decision to rule in Mother’s favor, even 

though it could have weighed the same evidence in his favor. As noted in 
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Lewis, supra, such a reason simply does not establish bias. Father’s third 

issue is meritless.

In Father’s final two issues, we review the crux of the court’s custody 

decision. The primary concern in any custody case is the best interests of the 

child. To determine a child’s best interests, the Child Custody Act lists specific 

factors the court must consider. See 23 Pa.C.S.A. §5328(a)(1)-(16). As such, 

the Act intends for these disputes to be decided on a case-by-case basis.

Father’s penultimate issue asks whether the court’s decision is 

supported by competent evidence. See Father’s Brief at 13. Again, Father 

provided no citation to either the record, nor relevant legal authority. See 

Pa.R.A.P. 2119(a), supra. Essentially, Father argues that because the court 

did not find his testimony to be incredible, such testimony – that shared 

custody is in Child’s best interests – must be accepted as gospel truth. See

Father’s Brief at 13. This argument speaks not to the competency of 

evidence, however, but to the weight of the trial court placed on the evidence.

Still, as we mentioned above, the finer points of Father’s first issue may 

be transposed here. See id. at 10-11. Because the court’s decided the Child’s 

need for stability was the reason Mother’s primary custody should be 

restored, we review whether there was competent evidence to allow the court 

to make such a determination.

Section 5328(a) of the Child Custody Act provides, in relevant part:

In ordering any form of custody, the court shall determine 

the best interest of the child by considering all relevant 

factors...including the following:
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[...]

(4) The need for stability and continuity in the child’s 

education, family life and community life.

[...]

(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.

[...]

23 Pa.C.S.A. § 5328(a)(4), (9) (emphasis added).

Here, the trial court determined:

Factor 4: The need for stability and continuity in the 

child’s education, family life and community life.

[Child] is doing well in his current school.... Father lives in a 

different school district, but was unsure which school district 

that is, how his school district compares to the child’s 

current school district, and how that school district is 

responding to the COVID-19 pandemic.

When in Mother’s physical custody, [Child] is enrolled in 

many activities throughout the community including judo, 

soccer, swimming, Spanish boot camp, and community 

fundraising events. It is unclear how Father facilities 

[Child’s] participation in these activities. Father testified 

that he does not take [Child] to judo because they are not 

taking, in his view, proper COVID-19 precautions. Mother 

noted that Father did not facilitate [Child’s] participation in 

the Spanish boot camp virtual classes. Father responded 

that he was not made aware of any virtual classes but did 

facilitate completion of the worksheets provided by Mother. 

It was also revealed that some of the exhibits showing 

Mother and Child at fundraising events were photographed 

by Father.

[...]

Factor 9: Which party is more likely to maintain a 

loving, stable, consistent and nurturing relationship 
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with the child adequate for the child’s emotional 

needs.

By all accounts, [Child] is a respectful, responsible child who 

is doing well, although Mother testified that [Child] has been 

less focused recently. Mother testified that she intentionally 

encourages an open relationship with [Child] in which he 

can trust her and confide in her. Mother also testified that 

she has special time with [Child] in addition to routine family 

duties and processes. Father testified that he is consistently 

with [Child], taking him along when working on Father’s 

design business and nurturing the relationship through that 

consistent presence.

Memorandum at 5; 6-7.

Notwithstanding the court’s emphasis on the contributions of both 

parents, the court did make a clear finding that it was in Child’s “best interest 

for Mother to regain primary physical custody to provide him with stability....” 

Id. at 9. Father argues this finding was not support by the record:

The trial court did not find one parent was more likely to 

maintain a loving, stable, consistent and nurturing 

relationship with the child adequate to his emotional needs. 

Instead, the trial court pointed out positive points about 

each parent concerning this factor but failed to note that 

Father testified that the child is focused when he has 

custody.

Father’s Brief at 10.

When reviewing whether the court’s findings are supported by the 

record, we must be careful not to make independent factual determinations. 

See S.T., 192 A.3d at 1160. “However, we are not bound by the trial court’s 

deductions or inferences from its factual findings.” Id. Ultimately, the test is 
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whether the trial court’s conclusions are unreasonable as shown by the 

evidence of record. Id.

Here, the parties consented to a primary/partial arrangement after they 

separated in 2014. Soon thereafter, Father only sporadically exercised his 

rights, in large part due to the instability in his own life. See N.T., at 9-10. 

According to Mother, Father lived with a girlfriend with whom he fought in 

front of Child.

5

 People smoked in Father’s home; Mother had to bring Child 

food and clothing when Child was in Father’s custody; and Father would not 

take Child to his daycare program, which jeopardized his enrollment when 

Mother had primary custody. Id. And only when Mother pressed for more 

consistency did Father agree to see Child on a regular schedule – every other 

weekend, less than half of what he originally consented to. Id. Child was 

three years old at the time. 

Since then, Mother has been the driving force in Child’s life. Mother was 

the parent responsible for all medical appointments; Father had not gone to 

any since the parties separated. Mother instituted a reward system to 

promote Child’s development; i.e. Child receives points for doing chores, 

performing personal hygiene without Mother asking, and the like until Child 

accumulates enough points to merit a reward. Id. at 27. Mother also ensured 

____________________________________________

5 Presumably, Mother meant Father had verbal arguments, not physical 

altercations.
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Child met his educational needs, whereas Father has never attended a parentteacher conference. Id. at 12. The parties operated this way for years until 

they tried, on an interim basis, a shared custody arrangement pending a final 

hearing.6

But even during the interim arrangement, Mother remained the 

household manager, ensuring Child’s stability and continuity. For instance, 

Father did not facilitate one of Child’s extra-curricular activities during the 

COVID-19 pandemic, because he was not made aware the activity had virtual 

sessions. See Memorandum at 5. Such an excuse echoes Father’s explanation 

that he had not attended parent-teacher conferences, because Mother did not 

make him aware of them. N.T. at 75. Likewise, Father would ensure Child did 

his assignments, if Mother provided the worksheets to Father. Implicit in 

these acknowledgements is that Mother is the parent responsible for attending 

to the Child, and that Father may also attend to Child, if Mother provides the 

direction.

Critically, this inconsistency between the parents’ standards of care has 

had an adverse effect on Child. Mother testified that, during Father’s custodial 

time, Child turned in his assignments late at night. Id. at 44. Mother also 

____________________________________________

6 Mother suspected the impetus for the litigation was not her COVID-19

quarantine, but the fact she recently obtained a formal child support order

against Father, the inference being that Father sought to reduce his obligation 

by obtaining more custody. See id. at 32.
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stated Child began having trouble sleeping and waking up on time. Id. 

Moreover, Mother testified:

[Child had] been a lot more agitated lately. He has not been 

focused. He actually has been talking back to me, and 

[Child] doesn’t do that. He’s very respectful. He doesn’t, 

you know – I don’t think that he’s adjusting how I would 

want for him to.

Id. at 21.

We may infer that Child’s maladjustment could be attributed to Child’s 

unstable living situation while in Father’s custody. At the beginning of the 

interim arrangement, Father was living with Paternal Grandmother, but 

Mother understood that Paternal Grandmother kicked Father out of her home, 

and that Father has been staying at a hotel since. Id. at 22. Mother also 

suspected that Child slept in Father’s bed or on the couch, because he did not 

have a bed of his own while in Father’s care. Id. at 41. Father disputed this, 

testifying that he lives with his fiancé and her two-year-old daughter. Father 

conceded that he rents a room at a hotel, but only so he can unburden the 

fiancé and her daughter with his graphic design business, which involves 

odorous chemicals. Id. at 77.

Even if the court accepted Father’s explanation for the hotel room, the 

court was clearly not assuaged by the Father’s inconsistent schedule. Father 

testified some nights he slept at the hotel with Child and had Child do his 

schoolwork there. Id. at 80. Other nights, Child slept at the apartment Father 

shared with his fiancé; Father testified Child has his own room at the 
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apartment, because the two-year-old slept either in the master bedroom with 

Father and the fiancé or in her playpen in the main area. Id. at 77; 102; 69. 

Perhaps as a consequence, Child was not always keen on going into Father’s 

care. Mother testified that Child had “ups and downs,” and sometimes asked 

if he could go to his cousin’s house instead of going with Father. Id. at 34-35.

In response to Mother’s testimony on the stability factors, Father stated 

he is “maintaining things” for Child and that he is “doing what I need to do be 

doing, taking care of [Child.] That’s all that matters.” Id. at 80. In terms of 

performing the routine parental duties, Father testified he cooks food for Child, 

“[b]ut other than that, [Child, who was nearly 8 years old] knows how to do 

a lot of things on his own.” Id. at 80. Father did testify about the beneficial 

ways he spends time with Child, which included playing sports and LEGOs. Id.

at 74. But in highlighting those attributes on appeal, Father conflates the 

competency of the evidence with the weight of evidence.

In our review, the record reveals there was competent evidence to 

support the court’s decision. Child lacked a certain degree of stability and 

consistency during the interim, shared arrangement; Child was negatively 

affected by the same; and it was in his best interest to revert back to the 

primary/partial arrangement that Child had known virtually all of his life. We 

also should not ignore that the court accepted Father’s argument that a more 

equitable division of custodial time was in Child’s best interest. The court

awarded Father more time than what he had been utilizing for the previous 

four years, evidently in the hope that this increased time would foster the 
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relationship between Father and Child, without incurring the negative 

consequences of a truly shared custody arrangement. The court added that 

its increase of Father’s partial custody was meant to maintain Father’s

relationship with Child, and that the court “will look to provide Father with 

significant custodial time to enhance [Child’s] ability to have an emotional 

connection with Father.” See Memorandum at 9. 

As Father reiterates throughout his Brief, the rest of the court’s findings 

favored neither parent over the other. Thus, it was not unreasonable that the 

trial court’s conclusions turned on the stability issue. See S.T., supra (“[T]he 

test is whether the trial court’s conclusions are unreasonable as shown by the 

evidence of record.”). Therefore, we conclude Father’s fourth appellate issue 

is without merit.7

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7 Although we focused on court’s stability findings, we note the court’s 

application of two other custody factors. The court declined to interview Child 

or otherwise seek to obtain his preference, nor did the court consider Child’s 

potential sibling relationship. In his Brief, Father states in passing: “It was 

unclear from the trial court opinion why the court opined that [Child] lacked 

the maturity to form a well-reasoned preference [pursuant to Section 

5328(a)(7)]”; and that “[t]he trial court erroneously found that [Child] has no 

sibling relationship while acknowledging that Father has a two-year old 

[daughter] with his fiancé [pursuant to Section 5328(a)(6)].” Father’s Brief 

at 10. We conclude neither of these mistakes warrant a reversal of the court’s 

decision, in this case.

First, Father did not request that the court interview Child, nor did Father 

object to the court’s procedure during the hearing; and Father may not raise 

the issue for the first time on appeal. See Pa.R.A.P. 302.

Second, although Father is not the biological parent of this daughter, the 

daughter stood to be a “step-sibling” imminently. For purposes of Section 
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Finally, we address Father’s fifth appellate issue, which asks whether 

the court’s weighing of the custody factors was erroneous. See Father’s Brief 

at 13. Once more, Father provides no citation to the record, nor legal 

authority to support his argument. He merely argues the court found both 

parents to be equally capable and concludes that Mother’s restoration of 

primary custody was erroneous. Id.

In reviewing a weight claim, we observe the great deference we bestow 

to the trial court on matters of custody:

[O]n issues of credibility and weight of the evidence, we 

defer to the findings of the trial [court] who has had the 

opportunity to observe the proceedings and demeanor of 

the witnesses.

The parties cannot dictate the amount of weight the trial 

court places on evidence. Rather, the paramount concern of 

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

interference is unwarranted if the trial court's consideration 

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

and we are unable to find any abuse of discretion.

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

We can appreciate the Father’s frustration with the court’s minimalistic

findings, even if a remand under Section 5323(d) is unwarranted. Father is 

____________________________________________

5328(a)(6), “sibling” is intended to include “full-blood siblings, half-blood 

siblings, step-siblings and adoptive siblings.” See 23 Pa.C.S.A. § 5328, 

Comment – 2010. In any event, Father provided virtually no testimony about 

Child’s relationship with the fiancé’s daughter. 

Third, and most importantly, Father ultimately concedes “the trial court did 

address all relevant factors[.]” See Father’s Brief at 11. Father did not directly 

appeal these errors, and he makes no argument that the court’s best interest 

analysis was erroneous based on its omissions under Section 5328(a)(6)-(7).
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correct that the court’s findings mostly recounted the ways in which both 

parents were similarly situated. Although the court could have provided more, 

its rationale was sufficiently clear: “The [c]ourt concludes that it is in [Child’s] 

best interest for Mother to regain primary physical custody to provide him 

with stability while still maintaining a close relationship with Father.” See 

Memorandum at 9 (emphasis added). The court clearly weighed heavily in 

Mother’s favor those factors concerning stability. See 23 Pa.C.S.A.§

5328(a)(4); (9), supra.

Had the history of this case not been one of Mother’s primary care, 

perhaps we might have shared Father’s skepticism that such an incongruent 

amount of custody time may be awarded based on a single reason, especially 

when the stability factors do not directly affect the safety of this Child. See 

23 Pa.C.S.A.§ 5328(a)(“[T]he court shall...giv[e] weighted consideration to 

those factors which affect the safety of the child[.]”). But even then, we would

have to be mindful of our role. We defer weight issues to the trial court, and 

our interference is unwarranted so long as the court’s consideration was 

“careful and thorough.” See A.V., 87 A.3d at 820. And we reiterate that 

“parties cannot dictate the amount of weight the trial court places on 

evidence.” Id. Here, the court thoroughly addressed all the relevant factors 

and reached a thoughtful conclusion. Father does not allege otherwise, so 

much as he contends such findings also support the shared custody

arrangement he desires. He is not wrong. Had the trial court made the same 

findings, but reweighed the factors in Father’s favor, our deference to the trial 
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court would almost certainly have precluded our interference just the same. 

Father’s final issue is without merit.

In sum, we affirm the trial court’s ultimate physical custody award. The 

trial court adequately delineated its reasons for its decision; the court did not 

evince any sort of bias or even the appearance thereof; there was competent

evidence of Child’s need for stability; and the court’s weighing of those

stability factors in its best interest analysis was neither an error nor an abuse 

of discretion. However, Paragraph 36 of the court’s custody order, which 

demanded the parties mediate prior to future litigation, exceeded the court’s 

authority. Because the trial court indicated in its Rule 1925(a) opinion that it 

only meant to direct the parties to the orientation session, and because such 

mandatory attendance is already provided for by the local rules, we may strike 

Paragraph 36 from the rest of the custody order without remanding the matter 

back to the trial court.
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Paragraph 36 of the court’s order, dated 10/14/20, vacated. In all other 

respects, the order is affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/5/2021