J-S30009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.L.H., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

L.C.,

Appellee No. 2100 MDA 2016

Appeal from the Order Entered October 31, 2016

In the Court of Common Pleas of York County

Civil Division at No(s): 2010-FC-001740-03

BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 22, 2017

R.L.H. (“Father”) appeals pro se from the October 31, 2016 order 

awarding him shared legal and physical custody of his minor children, 

E.S.H., a son born in 1999, S.S.H., a daughter born in September of 2001, 

B.C.H., a daughter born in 2003, and A.A.H., a son born in 2005 (collectively 

“the Children”).1 The order directed that Father was to share custody with 

L.C., the Children’s mother (“Mother”).2 The order specified that Mother 

would have primary physical custody of E.S.H., S.S.H., and A.A.H., with 

partial physical custody awarded to Father, and Father would have primary 

____________________________________________

1

 N.T., 10/26/16-10/27/16, at 10.

2

Father also has a five-year-old son with his current wife, E.H., 

(“Stepmother”). N.T., 10/26-27/16, at 50, 73. The five-year-old son is not 

a party and did not participate in these proceedings. Id.
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physical custody of B.C.H., with partial physical custody awarded to Mother. 

After careful review, we affirm.

This Court previously set forth the factual background of the custody 

litigation between Mother and Father as follows:

Mother and Father were married in 2001 and 

separated in 2008. The parties have four minor 

children, E.H., S.H., B.H., and A.H. (collectively, “the 

Children”). Father originally filed for custody in 2007, 

shortly after Mother left Dauphin County for York 

County. Father resided in Dauphin County, and filed 

for custody in that jurisdiction. It appears that the 

matter was settled by agreement at conciliation on 

December 11, 2007, providing Mother with majority 

physical custody and Father with significant time 

every weekend. This [c]ourt does not have access to 

the complete Dauphin County records, however, 

numerous Dauphin County documents were clocked 

into the York County file when the matter was 

referred to that jurisdiction on September 17, 2010. 

Early in 2009, Father filed an emergency 

petition to modify custody. The matter was 

ultimately tried before the Hon. Judge Todd Hoover 

of the Dauphin County Court of Common Pleas with 

an order entered July 6, 2009. The order modified 

custody only slightly, and majority custody remained 

in Mother. Father immediately filed an appeal in 

Superior Court, which ultimately affirmed Judge 

Hoover’s order on March 12, 2010. On the same 

day, Father filed a new petition for emergency 

custody in Dauphin County, along with a petition to 

preclude Judge Hoover from hearing the case as he 

had “shown judicial bias.” ... 

Without the Dauphin County file, the trial court 

is unable to determine precisely how the case was 

transferred, but the matter ultimately found its way 

to York County, with a significant number of Dauphin 

County orders docketed in York County’s 

Prothonotary’s file on September 17, 2010. The 
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matter was tried before the Hon. Judge Clarence N. 

Patterson on January 25, 2011, with an order 

entered on February 9, 2011, confirming majority 

physical custody in Mother.

At that time, because of concerns developed 

during the course of the trial that Father had 

significant anger issues, Judge Patterson ordered 

Father to enter into a program of anger management 

within 30 days of the court order and, upon 

completion of the same, to file with the trial court a 

certificate of attendance. Father again appealed to 

the Superior Court, which affirmed the decision of 

Judge Patterson on November 29, 2011.

On March 19, 2012, Father again filed a 

petition to modify custody seeking to re-litigate all 

issues from 2007, which initiated the instant matter. 

Father also filed a petition for civil contempt against 

Mother on July 23, 2012, which was ordered to be 

addressed at the trial in the custody matter. As a 

result of the death of Judge Patterson, the matter 

was tried before the Hon. Harry M. Ness on 

November 30, 2012. After significant discussion, 

Father agreed to proceed only on those issues 

arising since the last order of court, as all of the 

other issues had been litigated and ruled upon. At 

this time, Father also agreed to withdraw his petition 

for civil contempt against Mother.

R.H. v. L.H., ___A.3d___, ___, 130 MDA 2013 (Pa. Super. filed September 

10, 2013) (unpublished memorandum at 1-2) (quoting Trial Court Opinion, 

12/17/2012, at 1-3).

In the amended custody order entered December 18, 2012, the trial 

court awarded shared legal custody of the Children to the parties, primary 

physical custody to Mother, and partial physical custody to Father. This 

Court affirmed the order based upon the finding that Father had failed to 
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preserve his claims pursuant to Pa.R.A.P. 1925(a)(i)(2) and (b). The 

December 18, 2012 order provided that Father was to have partial physical 

custody of all four children on alternating weekends. The parties would 

alternate physical custody on weekends, and Father was to have physical 

custody on alternating weeks during the summer. Each parent was to confer 

with the other on all matters of importance relating to the Children’s health. 

The parents were to listen carefully and consider the wishes of the Children 

in addressing any parenting issues.

The parties do not dispute that, in early 2015 when S.S.H. was 

thirteen years old, she became pregnant by the son (“Stepbrother”) of 

Mother’s then paramour, now husband (“Stepfather”). Stepbrother was 

fourteen years old at the time. At the time of the pregnancy, both 

Stepbrother and Stepfather were residing with Mother and the Children. 

Upon learning of the pregnancy, York County Children Youth and Families 

(“CYF”) conducted an investigation. Mother took S.S.H. to Philadelphia, 

where the child had an abortion. Subsequently, S.S.H. has remained in 

Mother’s home, where Stepfather continues to reside. Stepbrother has 

moved into his grandmother’s home. Since the entry of the December 18, 

2012 custody order, B.C.H. began residing with Father, who assumed 

primary physical custody of the child, with Mother’s agreement. On June 29, 
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2016, Father filed a petition to modify custody and a petition for contempt 

against Mother.3 In the petition to modify, Father asserted the following:

While in the [M]other’s continuous unsupervised care, 

many things have continued to happen against the “Best 

Interest” of the [C]hildren. And though I the father have fought 

to avoid such things, it has been brought to me [sic] attention 

that my daughter was sexually assaulted while in her mother’s 

home by [M]other’s paramour’s child, and impregnated through 

the assault, and then transported to Philadelphia to terminate 

this pregnancy to cover up this act.

WHEREFORE, Petitioner requests your Honorable Court to 

modify the Custody Order as follows: Father shall be given full 

custody of the younger two children, the older two children shall 

remain with [M]other. Though [F]ather is more than willing to 

have all four of his children, it is likely that his 14 and 17 year 

old continue to rebel and bring more upset than relief to their 

lives. At this time this is the father’s request, and any other 

relief as your Honorable Court deems just.

Petition to Modify, 6/29/16, at 2. Thus, in the petition for modification, 

Father sought primary physical custody of B.C.H. and A.A.H., but not 

necessarily E.S.H. and S.S.H. The trial court held an evidentiary hearing on 

the modification petition on October 26, 2016, and October 27, 2016.

At the hearing, the parties acted pro se. Father first presented the 

testimony of Kristy Rivera, S.S.H.’s therapist, who did not testify concerning 

S.S.H.’s treatment due to patient confidentiality. N.T., 10/26-27/16, at 8-

14. With the agreement of the parties, the court then questioned the four 

____________________________________________

3

 On December 29, 2016, the trial court denied Father’s petition for 

contempt. Father did not appeal the order denying his petition for 

contempt, and it is not before this Court on appeal. 
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children individually, in the courtroom, in the presence of the parties. Id. at 

18. When the court completed its questioning of the Children, Father 

requested that the trial court return his papers to him on which he had typed 

questions he had planned to ask the Children. Id. at 50. The court returned 

the papers to Father and, with the agreement of Father and Mother, did not 

make them part of the record. Id.

Father then questioned Cynthia Sindlinger, the program specialist at 

CYF. N.T., 10/26-27/16, at 51. Ms. Sindlinger testified concerning the CYF 

investigation into the allegations that Stepbrother had sexually abused 

S.S.H. Id. at 52-57. Ms. Sindlinger also testified concerning prior CYF 

investigations of the Children in Mother’s care. Id. at 52-61. Ms. Sindlinger 

testified that the assigned caseworker had gone to S.S.H.’s school on 

March 22, 2016, after S.S.H. stated that she was engaging in self-harm in 

the form of cutting her arm because she did not want to be in Father’s 

physical custody. Id. at 61-63.

Next, Father questioned Detective Robert Ryman of the Northern York 

County Regional Police Department regarding the police investigation into 

the allegations that Stepbrother had sexually assaulted S.S.H. and that 

Mother had taken S.S.H. to Philadelphia for an abortion. N.T., 10/26-27/16, 

at 66-67. When Detective Ryman spoke with Mother and asked her about 

S.S.H., Mother initially responded that “nothing really is going on.” Id. at 

67. When Detective Ryman asked about Mother taking S.S.H. to 
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Philadelphia to have an abortion, Mother responded, “Oh, that.” Id. She 

then related the details of the matter to Detective Ryman. Id. After an 

investigation, the District Attorney’s Office closed the case. Id. at 67-68. In 

January of 2016, the police received another report that Stepbrother was 

telling people at school that he was having sex with S.S.H., and students 

were teasing S.S.H. Id. at 68. Police investigated the complaint, and 

S.S.H. informed them that she wanted the matter concluded and for 

Stepbrother to get help. Id. at 69. On February 11, 2016, Stepbrother was 

charged with a number of criminal offenses, but Detective Ryman was 

uncertain of the outcome. Id. at 69-70. Detective Ryman said that since 

his investigation in January of 2016, there was an allegation that 

Stepbrother had come into S.S.H.’s room, exposed himself, and climbed into 

bed with her. Id. Both juveniles were fourteen years old at the time. Id. 

To clarify his testimony, Detective Ryman stated that Mother was not initially 

forthcoming about the fact that she had taken S.S.H. to Philadelphia to have 

an abortion. Id. at 71. 

Father then presented the testimony of his wife (“Stepmother”). N.T., 

10/26-27/16, at 73. Stepmother described an incident in which Mother and 

Stepfather came to Father’s home to take custody of the Children, and 

Stepfather allegedly assaulted Father, resulting in criminal charges against 

Stepfather. Id. at 82-84.
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Next, Mother presented the testimony of Stepfather, through 

questioning by the court. N.T., 10/26-27/16, at 102. Stepfather testified 

that Stepbrother was fifteen years old at the time of the hearing and was 

fourteen years old at the time of the sexual assault on S.S.H. N.T., 10/26-

27/16, at 106. As a result of the criminal charges against him, Stepbrother 

was found to have engaged in indecent contact, and he was placed on 

probation for one year. Id. at 107. Stepbrother was in therapy at the time 

of the hearing and was instructed not to have any contact with S.S.H. as a 

term of his probation. Id. As noted, Stepbrother now lives with his 

grandmother, but he attends the same high school as S.S.H. Id. at 107, 

119-120. Stepfather stated that pursuant to a court order, Stepbrother 

must be kept away from S.S.H. until he has completed his counseling and 

therapy. Id. at 109-110.

Mother then questioned Stepfather. N.T., 10/26-27/16, at 109. 

Stepfather explained the incident for which he was criminally charged with 

simple assault in relation to his altercation with Father. Id. at 110-112. 

Stepfather testified that all of the Children have anxiety relating to going to 

Father’s house, with the exception of B.C.H. Id. at 112-113. S.S.H. has 

stated to him that she was cutting herself because of her anxiety over being 

at Father’s home. Id. at 112.

On October 27, 2016, Father presented the testimony of 

Vanessa Cattano, Mother’s previous landlord. N.T., 10/26-27/16, at 125, 
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129-130. Ms. Cattano testified that during the ten years that Mother lived in 

the building she managed, eviction proceedings previously had been brought 

against Mother on many occasions, which did not result in her eviction, 

because Mother always eventually paid her late rent. Id. at 129-131. 

Mother was eventually evicted in August 23, 2016. Id. at 131. Father then 

presented the testimony of Mother’s mother, regarding the fact that Mother, 

Stepfather, E.S.H., S.S.H., and A.A.H., were staying with her in her onebedroom apartment at the time of the hearing. Id. at 133-134.

Finally, Father and Mother testified on their own behalf, questioned by 

the trial court. N.T., 10/26-27/16, at 177, 203. Father also questioned 

Mother. Id. at 232.

In the October 31, 2016 order, the trial court awarded Mother and 

Father shared legal custody of the Children, with Mother having primary 

physical custody of E.S.H., S.S.H., and A.A.H., and Father having primary 

physical custody of B.C.H. During the school year, the parties were to share 

physical custody of the Children on alternate weekends, so that the Children 

would be together on all weekends. In the summer, Mother and Father were 

each to have custody of all four children on alternating weeks.

On December 1, 2016, Father timely filed a notice of appeal, along 

with a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court, however, entered an order 

on December 6, 2016, directing Father to file a concise statement within 
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twenty-one days.4 On December 27, 2016, Father filed a second concise 

statement, raising an additional issue.5 

In his brief, Father raises the following issues for this Court’s 

consideration:

1. Whether the trial court erred and abused its discretion by 

awarding the mother continued primary custody of the 

[C]hildren by misapplying and/or ignoring the factors outlined in 

23 Pa.C.A.S. [sic] § 5328(a)?

2. Whether the trial court erred by repeatedly interfering with or 

just completely taking over the plaintiff’s questioning and 

examination of the witness?

3. Whether the court erred by failing to give proper weight to the 

testimony of North Regional Police Detective Robert Ryman, 

when testifying to the Sexual Assault of child SSH by the son of 

[M]other’s then paramour?

4. Whether the court erred by failing to give proper weight to the 

mother’s untruthfulness regarding her knowledge of the sexual 

____________________________________________

4

 In its Pa.R.A.P. 1925(a) opinion, the trial court explained that it issued this 

order because Father had left a numbered paragraph blank, and had failed 

to sign the concise statement. Trial Court Opinion, 12/30/16, at 1. 

5 The trial court explained that the issue was in addition to Father’s 

completion of the paragraph that he had previously left blank. Trial Court 

Opinion, 12/30/16, at 1. We will not penalize Father for his filing his 

completed concise statement after his notice of appeal, as he complied with 

the trial court’s order. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009) 

(finding that the appellant’s failure to simultaneously file a Rule 1925(b) 

Statement did not result in waiver of all issues for appeal where the 

appellant later filed the Statement, and there was no allegation of prejudice 

from the late filing). Cf. J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010) 

(finding that the appellant waived issues for appeal by failing to comply with 

the trial court’s order directing her to file a Rule 1925(b) Statement within 

21 days). 
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assault, as well as her attempt to cover it up by taking the child 

to Philadelphia for an abortion of the products of said assault?

5. Whether the court erred to truly consider what is in the best 

interest of the [C]hildren when learning that while under 

investigation as a “Perpetrator by omission” for the sexual 

assault of SSH, [M]other decided to have a rushed wedding to 

[Stepfather,] the father of the perpetrator against child SSH?

6. Whether the court erred by failing to hold [M]other in 

contempt for her perjury, as well as child endangerment when 

she denied being informed by child SSH that she had attempted 

to overdose on medications when placed in plaintiff’s home by 

CYFS [Children and Youth Family Services]?

7. Whether the court erred by failing to hold [M]other in 

contempt for withholding the [C]hildren from [Father] for a 

period of thirteen (13) [months] despite [Father’s] attempts to 

exercise the previous order[?]

8. Whether the court erred by failing to hold [M]other in 

contempt for failing to comply with pretrial instructions as she 

did not: File a pretrial memorandum, File a parenting plan, 

Attend the Co-parenting class, nor did she attend the court 

appointed mediation[?]

9. Whether the court erred by failing to ask the [C]hildren the 

questions [Father] had written for the court to ask, only to then 

ask the same questions to the mother when the [C]hildren were 

no longer available for reexamination? 

Father’s Brief at 16.

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

§§ 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 
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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.

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) (quoting 

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

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

stated the following regarding an abuse of discretion standard:

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). “An 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 
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record to be either manifestly unreasonable or the product of partiality, 

prejudice, bias or ill will, discretion has been abused.” Bulgarelli v. 

Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (quotation omitted).

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

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section 

5338 of the Act provides that, upon petition, a trial court may modify a 

custody order if it serves the best interests of the child. 23 Pa.C.S. § 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:

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between the 

child and another party. 

(2) The present and past abuse committed by a 

party or member of the party’s household, whether 

there is a continued risk of harm to the child or an 

abused party and which party can better provide 

adequate physical safeguards and supervision of the 

child. 
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(2.1) The information set forth in section 

5329.1(a)(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.

(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.
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(14) The history of drug or alcohol abuse of a party 

or member of a party’s household.

(15) The mental and physical condition of a party or

member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S. § 5328.

Furthermore, we have explained:

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.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), 

appeal denied, 70 A.3d 808 (Pa. 2013). . . . 

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.” M.J.M. 

v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 

[620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of 

reasons for its decision, which adequately addresses the relevant 

factors, complies with Section 5323(d). Id.

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

In issues one, three, and four, Father assails the trial court’s 

consideration of Section 5328, the weight of the evidence, and Mother’s 

credibility. In addressing these issues in its opinion, the trial court adopted 

its consideration of the Section 5328 factors that it provided on the record at 

the conclusion of the hearing on October 27, 2016. Trial Court Opinion, 

12/27/16, at 1-7; N.T., 10/26-27/16, at 255-272. While lengthy, we 
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reproduce the trial court’s on-the-record discussion as it aptly addresses 

Father’s issues. The trial court reasoned as follows:

Now, I caution you that this is not a situation where I 

decide which factors favor which party, then add up the factors 

on each side and whoever has more factors wins. That’s not the 

way it works. So be aware of that. Some factors have more 

weight in some cases than in others. 

So the first factor, which party is more likely to encourage 

and permit frequent and continuing contact between the child 

and another party.

Frankly, from the evidence that I found credible, I don’t 

think either one of you is particularly likely to encourage or 

permit that kind of contact. But I will say that [M]other has, 

without the necessity of court intervention, agreed that one of 

the [C]hildren, [B.C.H.], would basically be with [F]ather most of 

the time. So to that extent, the factor favors [M]other.

But I again caution you, my impression of both of you, 

based upon the testimony I heard, is that, what can I say? You 

have, your relationship needs so much work that I’m not sure it 

could ever rise to the level of even being able to communicate as 

reasonable human beings regarding the best interests of your 

children. That’s too bad. I wish that could be changed. At the 

present time, it is a nonexistent to negative relationship.

The next factor is the present and past abuse committed 

by either 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 best provide adequate physical safeguards 

and supervision of the child.

[W]ell, [S.S.H.] was abused by [S]tepbrother while in the 

physical custody and in the home of [M]other that resulted in a 

CYF investigation, at which time the other children in [M]other’s 

household were placed with [F]ather for a period of time. The 

[C]hildren were then returned to [M]other and her custody to 

live in her household when CYF was satisfied that [S.S.H.] and 

the other children were no longer at risk of harm.
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I’m satisfied that [M]other has taken appropriate steps, 

either because she has been ordered to or because she thought 

it was best, to make sure that [S]tepbrother had no contact with 

[S.S.H.]. By the same token, it must be said, if [S.S.H.] was 

living with [F]ather[,] the ability of [S]tepbrother to have contact 

with [S.S.H.] would be greatly reduced.

This was certainly a traumatic incident for [S.S.H.] and I 

think for both of her parents. I am satisfied that [S.S.H.] is safe 

with [M]other where she is now. I don’t believe that [M]other is 

culpable for the abuse visited upon [S.S.H.] by [S]tepbrother, 

and I am satisfied that [M]other has taken appropriate steps to 

eliminate the risk of harm to [S.S.H.] by [S]tepbrother.

But it happened. There’s no doubt in my mind that 

[F]ather would be vigilant, as I believe [M]other is. So I don’t 

believe that that factor substantially favors either party.

The next factor is the information set forth in Section 

5329.1(a) relating to consideration of child abuse and 

involvement with protective services.

[W]ell, both parents have a long history of involvement 

with CYF. I conclude, based upon the testimony that I’ve heard, 

that the complaints of one parent, about one parent have been 

made by the other parent, and vice versa, with the exception of 

the CYF investigation regarding abuse of [S.S.H.] by 

[S]tepbrother, I am satisfied that all of those other CYF 

investigations were determined by CYF to be unfounded.

Therefore, that factor favors neither party.

The next factor is the parental duties performed by each 

party on behalf of the [C]hildren. [W]ell, if we are just judging 

who has, who has performed more parental duties, by virtue of 

[M]other’s majority physical custody of the [C]hildren, she has. 

But I am satisfied also that [F]ather, when the [C]hildren are in 

his custody, performs the parental duties that are necessary, 

and that if the [C]hildren were in his custody the same amount 

of time as [M]other, he would certainly fulfill those duties. I 

don’t think the factor favors either party.

The next factor is the need for stability and continuity in 

the child’s education, family life, and community life.
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[W]ell, I think these children do need stability and 

continuity. I’m not sure there’s any child that doesn’t, and there 

is nothing in the evidence I have been presented that would 

indicate to me that these children are different in any of those 

ways.

Since the parents separated and stopped living together in 

one household, the [C]hildren have primarily lived with [M]other. 

They have gone to the same -- they have attended school in the 

same school district probably for their entire school careers. 

That would be [C]entral York. So certainly stability and 

continuity regarding education would favor [M]other.

I heard really nothing significant about the community life 

of the [C]hildren from either parent, and both parents have 

families. It’s clear to me that up to the present most of the 

stability and continuity has been provided by [M]other’s family. 

So that would be a change if the [C]hildren were to live with 

[F]ather primarily.

So that factor does favor [M]other.

The availability of extended family. Mother has a number 

of extended family members in the York area, particularly her 

grandparents, who the [C]hildren interact with probably on what 

I remember being a weekly basis, and I’m satisfied that on the 

various holidays the extended family celebrates those together 

and the [C]hildren are a part of that.

Father has no extended family close by. His family is in 

Georgia and Florida. There is certainly communication between 

his extended family and the [C]hildren. But it is simply by virtue 

of the distance, they are not as available as [M]other’s extended 

family, so that factor does favor [M]other.

The [C]hildren’s sibling relationships. I’m satisfied that the 

[C]hildren have pretty typical sibling relationships. I’m sure that 

they bicker and fight amongst themselves, but at the end of the 

day they spend a lot of time with each other and have formed 

typical sibling relationships, which are pretty close and the court 

believes pretty important.

We will say that they do have a half[-]sibling, and that is 

the child of [F]ather and his current wife, and I believe that in 
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the time [the] [C]hildren spend with [F]ather they are 

developing an affection for their little brother, or little halfbrother, I should say, and that’s an important consideration.

So given all of that, I don’t believe that this factor favors 

either [M]other or [F]ather in any substantial way, with the 

understanding that if the father had majority physical custody of 

[Mother’s] three children, they would have more time to spend 

with their young half-sibling.

So[,] to that extent, the factor may favor [F]ather, but 

only marginally.

The well-reasoned preferences of the child, of the 

[C]hildren based upon the [C]hildren’s maturity and judgment.

Well, I spoke with the four children, [E.S.H.] being the 

oldest. His preference was clear, that he wanted to remain with 

[M]other primarily. He expressed his equivocal feelings about 

spending time with his father. 

[S.S.H.] clearly expressed a strong preference to remain 

with her mother and, in fact, went out of her way to make it 

known to the court that she wanted nothing to do with [F]ather.

[B.C.H.], on the other hand, expressed an interest in living 

primarily with [F]ather. She did not indicate that that was 

because of any problems that she had with [M]other, and in fact 

she told the court that she was in a sense torn because she 

misses [F]ather when she is not with him and she misses 

[M]other when she is not with her. [W]ell, that’s a reality of life 

for children of parents who have separated and divorced.

I will note that I believe that on the whole [B.C.H.] would 

opt to live with her father if she could, and I will also note that 

[M]other has indicated that that’s okay with her if that’s what 

[B.C.H.] wants to do.

[A.A.H.], the fourth child, indicated a preference for 

staying primarily with his mother and indicated that he did not 

like spending time at [Father’s] house. He’s the youngest of the 

four. So[,] I give less weight given his maturity and the manner 

in which he talked to the court than I do to his older siblings. 
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But I am not discounting it completely. So[,] this is sort of a 

mixed bag.

[W]ith regard to at least -- well, with regard to all of the 

[C]hildren but [B.C.H.], clearly they prefer staying with their 

mother most of the time. [B.C.H.] does not.

The court is concerned about having [B.C.H.] live with her 

father most of the time while the other children are living with 

their mother, but it strikes the court that whatever custody 

arrangements are ordered, it could be tailored so that [B.C.H.] 

could spend significant time with her siblings, sometimes when 

they’re at [Father’s], sometimes when they’re at [M]other’s.

That being said, for the most part the factor favors 

[M]other, with the exception of [B.C.H.], when it favors [F]ather.

The next factor is the attempts of a parent to turn the 

[C]hildren against the other parent, except in cases with 

domestic violence where reasonable measures are necessary to 

protect the child from harm.

[W]ell, the evidence I believe indicates that there have 

certainly been occasions when [M]other has spoken unkindly 

about [F]ather to the [C]hildren, but we also believe that is true 

of [F]ather and, frankly, we believe it is [F]ather to a greater 

extent. That’s just one of the primary complaints of the 

[C]hildren. So[,] that factor favors [M]other.

Next factor is which party is more likely to maintain a 

loving, stable, consistent, and nurturing relationship with the 

child adequate for the child’s emotional needs.

I am concerned about the [C]hildren’s reaction to staying 

with their father, with the exception of [B.C.H.]. I sense from 

the [C]hildren and from the other testimony I believe that there 

is a certain amount of estrangement that these three children, 

other than [B.C.H.], feel with regard to their father. I do not 

sense that with regard to their mother, and I don’t sense that 

with regard to any of the four children and their mother, and 

that includes [B.C.H.].

Given that current situation, this factor, I believe, favors 

[M]other.
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Which party is more likely to attend to the daily physical, 

emotional, developmental, educational, and special needs of the 

[C]hildren. I don’t have any doubt that both parents can 

adequately attend to the daily physical, developmental, and 

educational -- well, to the physical and educational and 

development of the [C]hildren.

I didn’t hear any evidence that any of the [C]hildren had 

special needs with the possible exception of [S.S.H.], regarding 

the traumatic incident involving her stepbrother. I am satisfied 

that [M]other has taken appropriate steps to have [S.S.H.] 

engage in a course of counseling and therapy regarding that 

situation that is ongoing.

So[,] when it came to the prior factor, I am concerned 

about the ability of [F]ather[,] at this present time[,] to be able 

to proactively attend to the [C]hildren’s emotional needs, and I 

am not saying that he cannot do that or would not try to do that, 

but at least at the present time I think that [M]other is more 

likely to be able to do that and, therefore, this factor favors 

[M]other, with the exception of [B.C.H.], in which case I think 

that both parents are equally capable of attending to those 

needs given the lack of estrangement of [B.C.H.] from her 

father.

The proximity of the residences of the parties. It’s about a 

45-minute drive, basically suburban Harrisburg to the [C]ity of 

York. I don’t think that really favors either party. It might not 

be a pleasant drive, but it is certainly not a drive that cannot be 

undertaken on a regular basis by both parents. So I don’t think 

that favors either party.

Each party’s availability to care for the [Children] or ability 

to make appropriate childcare arrangements. I don’t think that 

factor favors either party. I am satisfied based upon what the 

parties told me and the other evidence that I believe that when 

the [C]hildren are in their care, if they can’t care for them 

personally, they have appropriate arrangements to see that they 

are properly cared for. And at least the oldest two of them are 

pretty much getting to the age where they really don’t need 

intensive, if any, childcare services.

The next factor is the level of conflict between the parties 

and the willingness and ability of the parties to cooperate with 
J-S30009-17

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each other. I have already alluded to this. There’s a high level 

of conflict between these parents. While each one of them has 

expressed some willingness and ability to cooperate with one 

another, it’s clear to me that to the extent they do that, it’s the 

exception rather than the rule.

Frankly, I’m not sure they even bother listening to each 

other anymore. And I don’t see from the evidence I believed 

that there’s any light at the end of that particular tunnel.

So I, frankly, don’t think that factor favors either parent. 

The next factor is the history of drug or alcohol abuse by 

either party or member of the party’s household.

I don’t think that favors or disfavors either party. I am 

satisfied that by their testimony and the other evidence I 

believed that neither one of them has problems in those areas. 

So[,] that doesn’t favor or disfavor either party. The mental and 

physical condition of a party or a member of a party’s household. 

There is no evidence I found credible that indicates that this 

factor should favor one parent over the other.

CYF involvement. There certainly has been a lot of that. 

But for the incident involving [S.S.H.] and her stepbrother, it 

appears to the court that the other CYF involvement is more 

reflective of the parents’ attitudes towards each other than 

anything else. Having said that, I don’t think the evidence 

regarding CYF involvement favors or disfavors either party.

Any other relevant factor. I’m not sure there are any 

other relevant factors. I will comment on [F]ather’s insistence 

that these children need a father in their life and that, in fact, his 

role as a father is somehow being put on the back burner.

I disagree with that. I am a father. I had a father. 

Neither I nor the law of Pennsylvania discounts the importance 

of a father to his children or the importance of a mother to her 

children. But when the parties have separated and, in the case 

of these parties, divorced and no longer make up a single 

household, unfortunately compromises have to be made. That’s 

the nature of these cases.
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I don’t believe it would be in the best interests of these 

children at this point to remove them from the primary custody 

of their mother to [F]ather for a number of reasons, not only for 

educational stability, but also because of estrangement of three 

of the children from their father.

I believe [M]other when she indicates that the temporary 

living arrangements or the living arrangements she has are 

temporary and that, in fact, she will be securing residence in the 

Central York School District so the [C]hildren can continue their 

education in that school district without interruption.

I will say that if the only decision I had to make is which 

living arrangement at the present time better serves the 

[C]hildren or is more appropriate, I believe [F]ather’s current 

situation is preferable to [M]other’s current situation. But, 

again, I believed [M]other when she said that was temporary. 

And that, to me, is not a primary consideration because I’m also 

satisfied that although [M]other’s situation is not as favorable as 

[F]ather’s, it’s okay and the [C]hildren are okay and are being 

cared for properly.

To [F]ather’s credit, it sounds as if he has a very stable 

environment, has lived in the same townhouse for a number of 

years, is a veteran, has had very responsible jobs, is furthering 

his education, and I think he is sincere in his desire for wanting 

what is best for his children. But having all of the [C]hildren 

uprooted from the only real family situation that they have 

known and placed in the primary physical custody of [F]ather at 

this time is not in their best interest.

I believe that [F]ather, if he continues to have ongoing 

contact with his children, in the hopes that he will be able to 

start to bridge the gap that clearly exists between three of those 

children and him. Three of the four children are teenagers. 

Teenagers are tough under the best of circumstances. Frankly, I 

think these children have done fairly well given what I would say 

are less than the best of circumstances given the attitudes of 

their parents regarding each other. 

I would urge both parents to at least temporarily set aside 

the animosity they hold for the other and give their children a 

break. I can’t believe that either of these parents would not like 

to give these children an opportunity to enjoy their childhood 
J-S30009-17

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without all the drama that’s being engendered by the 

antagonistic relationship that these parents have with each 

other. I don’t think either parent has done a very good job of 

that.

I remind the parents it is their job to be the grownups. It’s 

the [C]hildren’s job to be children.

Now, look, I believe that with some changes the amended 

custody order of December 18, 2012[,] should remain in effect 

or should go back into effect.

That gives [D]ad [alternating] weekends during the school 

year, but more importantly it gives him half the summer. It 

gives him time for the [C]hildren to be settled down, get to know 

their father, and he them, in a more relaxed basis, and I think 

that’s important, and I want that to continue.

Differences would be, I believe -- I was impressed, I was 

impressed by all the [C]hildren, but particularly by [B.C.H.] and 

the manner in which she described to me what she would like. I 

thought it showed a fair amount of maturity for a young lady. It 

is clear to me that so far, of all of the four children, she is the 

best at trying to negotiate the tricky path that her parents have 

created regarding their relationship.

Furthermore, I think, given the terms and conditions of the 

amended custody order, [B.C.H.] can still spend the entire 

summer with the other three children and spend every weekend 

with them, and I think that’s, given their ages, I think that will 

be fine for her.

I’m going to go out on a limb here, and I’m not going to 

decide which parent ought to have sole legal custody. Generally 

speaking, the law is clear, if parents cannot cooperate at least to 

the extent to share in major decisions regarding their children, 

the court is to award sole legal custody regarding those decisionmaking prerogatives to one parent.

I’m hesitant to do that because I do not want either parent 

to have difficulty accessing the [C]hildren’s medical or 

educational records or being able to participate in the 

[C]hildren’s activities, including medical appointments, school 

meetings. It won’t be too long before the 16-or 17-year-old 
J-S30009-17

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might want to be talking about college. So I’m going to continue 

it that way, fully knowing that I’m not sure it’s going to succeed, 

but I would rather give the parents a chance for it to succeed.

[Mother] doesn’t do everything that’s best for these 

children; neither does [Father]. Maybe together, if only in a 

very limited and stilted way, they can at least communicate 

regarding major decisions, and their children they might come 

up with a better solution than either one of them might have on 

their own. 

Now, I have made my decision. However, I will entertain 

comments either one of you has regarding whether in the 

context of the decision I have made the rest of the terms and 

conditions of the December 18, 2012 order are appropriate.

N.T., 10/26-27/16, at 255-272.

This Court has stated: 

[t]he 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.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v. 

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

After our careful review of the record, we find that the trial court’s 

conclusions are not against the weight of the evidence or unreasonable in 

light of the sustainable findings of the trial court, which are supported by the 

evidence in the record. C.R.F., 45 A.3d at 443. The trial court thoroughly 

considered, weighed, and explained its findings with respect to each of the 

section 5228(a) factors. Thus, we find Father is entitled to no relief on 

issues one, three, and four.
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Next, we conclude that Father has waived issues, two, five, and nine, 

because those issues were not presented in his concise statement of errors 

complained of on appeal filed pursuant to Pa.R.A.P. 1925(a)(i)(2) and (b). 

See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 

797 (Pa. Super. 2006) (holding that an appellant waives issues that are not 

raised in both his concise statement of errors complained of on appeal and 

the Statement of Questions Involved in his brief on appeal); see also 

Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 

88 A.3d 222, 224 (Pa. Super. 2014) (reiterating that the failure to comply 

with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic 

waiver of the issues raised) (citation omitted). However, even were we to 

assume Father preserved issues two and nine, we would find no impropriety 

in the trial court’s questioning of the witnesses and the Children. As this 

Court has explained:

It is well settled that a trial court always has the right, and 

sometimes even the duty to interrogate witnesses, in order to 

clarify evidence, or to elicit new information that is necessary to 

ensure a fair trial. A new trial is required, therefore, only when 

the trial judge’s questioning amounts to an abuse of discretion. 

Because a charge of this nature is of the most serious type, 

however, the record must clearly show prejudice, bias, 

capricious disbelief or prejudgment before an abuse of discretion 

will be found. 

Fleck v. Durawood Inc., 529 A.2d 3, 5 (Pa. Super. 1987) (quoting Pratt 

v. Stein, 444 A.2d 674, 687 (Pa. Super. 1982)) (quotations and citations 

omitted).
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Here, were we to reach these issues, we would conclude that there 

was no abuse of the trial court’s discretion in questioning the witnesses and 

the Children, as the trial court was seeking to clarify the record concerning 

whether it was in the Children’s best interests to modify custody. The trial 

court did not exhibit partiality, prejudice, bias, or ill will toward Father in its 

questioning.

Similarly, if Father properly preserved issue five, we would conclude 

that it lacks merit because the timing of Mother’s marriage to Stepfather was 

of no significance to the trial court’s decision on the best-interest factors. It 

is a challenge to the weight that the trial court afforded the evidence. 

Because we have already concluded that the trial court’s decision was 

supported by competent evidence in the record in our discussion of issues 

one, three, and four, we discern no merit to this issue. 

In issues six, seven, and eight, Father asserts that the trial court erred 

in failing to hold Mother in contempt for perjury, child endangerment, and 

failing to comply with the trial court’s pretrial orders. With regard to the 

pretrial orders, the trial court stated that it did not find Mother in contempt, 

noting that Father did not request the trial court to do so. Trial Court 

Opinion, 12/27/16, at 5. This Court has held that issues not raised in the 

trial court are waived, and cannot be raised for the first time on appeal. In 

re C.P., 901 A.2d 516, 522 (Pa. Super. 2006); Pa.R.A.P. 302. 
J-S30009-17

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More importantly however, the trial court’s order denying Father’s 

petition for contempt is not on appeal. Thus, these issues are not properly 

before this Court. See In the Interest of M.B., 514 A.2d 599, 600 (Pa. 

Super. 1986) (stating that courts cannot rule on matters that are not 

properly before them).

For the reasons set forth above, Father is entitled to no relief. 

Accordingly, we affirm the October 31, 2016 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2017