J-A22021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.S.F.

v.

K.G.F., N/K/A K.G.S. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 431 MDA 2016

Appeal from the Order Entered March 3, 2016

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): CI-09-09368

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 18, 2016

K.G.F. n/k/a K.G.S. (“Mother”) appeals from the March 3, 2016 order 

in the Court of Common Pleas of Lancaster County that modified the existing 

custody order with respect to her son, P.F., born in May 2009 (“Child”). We 

affirm.1

This appeal arises from a petition for modification and contempt in 

custody filed by Mother against J.S.F. (“Father”) on April 15, 2015, wherein 

she requested primary physical custody and that Child be enrolled in the 

Cocalico School District for the 2015/2016 school year, among other things. 

Father filed an answer and new matter, wherein he requested primary 

____________________________________________

1 The Honorable Jeffrey J. Reich issued the subject order. The record reveals 

that he has presided over the underlying custody matter since it commenced 

in 2009.
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physical custody and for Child to continue attending elementary school in the 

School District of Lancaster.

A hearing occurred on January 8, 2016, January 14, 2016, and 

February 17, 2016. Mother testified on her own behalf, and she presented 

the testimony of A.M.W., her boyfriend; R.E.H., Jr., Child’s maternal great 

uncle; P.B.S., Child’s maternal grandfather; and Kate Egerter, a caseworker 

from Lancaster County Children and Youth Services. In addition, Mother 

presented the testimony of A.R.E., her then twelve-year-old son, who is 

Child’s half-brother. Father testified on his own behalf, and he presented the 

testimony via telephone of M.D., his colleague, and A.C., his neighbor whose 

son is a friend of Child.

In its opinion pursuant to Pennsylvania Rule of Appellate Procedure 

1925(a), the trial court set forth factual findings, which the testimonial 

evidence supports. As such, we adopt them herein. See Trial Court Opinion, 

4/15/16, at 3-12.

Importantly, the trial court found that the parties lived a driving 

distance of 35 to 45 minutes apart and had been operating “under a court 

order with a shared physical custody arrangement . . . whereby the Child 

was exchanged several times each week on a rotating bi-weekly schedule.” 

Trial Court Opinion, 4/15/16, at 3, ¶ 5; see also Trial Court Opinion, 

3/3/16, at 9. Further, Mother and Father are employed as educators in the 

School District of Lancaster. See id. at 3, ¶¶ 2-3. At the time of the subject 
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proceedings, Child was attending first grade in the School District of 

Lancaster. See id. at 5, ¶¶ 19-20. Specifically, Child was attending the 

Buchanan Elementary School, which was a driving distance of five minutes 

from Father’s home and thirty minutes from Mother’s home. See id. at 7, ¶¶ 

28-29.

By order entered on March 7, 2016, the trial court granted Father 

primary physical custody during the school year, and Mother partial physical 

custody on alternating weekends, from Friday at 5:00 p.m. until Sunday at 

5:00 p.m., and every Wednesday from after school until the beginning of 

school on Thursday. The court directed that Child continue to attend the 

Buchanan Elementary School. The court granted the parties shared physical 

custody on an alternating weekly basis during the summer. Further, the 

court granted the parties shared legal custody. 

Mother timely filed a notice of appeal and a concise statement 

pursuant to Rule 1925(a)(2)(i) and (b). On April 15, 2016, the trial court 

filed its opinion pursuant to Rule 1925(a).

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

I. Did the [t]rial [c]ourt err as a matter of law by its failure to 

adhere to Pa.R.C.P. 1915.4(c) in that the trial shall be 

commenced within 90 days of the date the scheduling order is 

entered?

II. Did the [t]rial [c]ourt err and/or abuse its discretion in 

denying Mother’s Emergency Petition to Bypass the custody 

modification conference, when it knew that there was limited 

availability to hold a hearing on the school district issue prior to 

the beginning of the 2015-2016 school year?
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III. Did the [t]rial [c]ourt err and/or abuse its discretion in 

deciding the school district issue in a manner not consistent with 

its prior order?

IV. Did the [t]rial [c]ourt err and/or abuse its discretion in 

denying Mother’s Emergency Petition to allow the telephone 

testimony of the mother of Father’s youngest child, which would 

have questioned the credibility of Father’s testimony, and which 

would have substantiated claims made by Mother?

V. Did the [t]rial [c]ourt err and/or abuse its discretion in 

refusing to follow its prior order allowing for the [i]n camera 

examination of Father’s employment record, when said order 

was entered as a result of suspension allegations which Father 

denied?

VI. Did the [t]rial [c]ourt err and/or abuse its discretion in 

misapplying the facts to the statutory factors under 23 Pa.C.S. 

[§] 5328, resulting in numerous conclusions that are 

unreasonable under the circumstances as shown by the record?

VII. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably did not give any consideration to Father’s history 

of not testifying truthfully at a prior proceeding?

VIII. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably did not give any consideration to the fact that 

Father was suspended from his employment yet again?

IX. Did the [t]rial [c]ourt err and/or abuse its discretion in that it 

unreasonably found it would be detrimental to the [C]hild if time 

with Father was minimized but was silent on the detrimental 

implications of minimizing the [C]hild’s time with Mother?

X. Did the [t]rial [c]ourt err and/or abuse its discretion in that it 

unreasonably found that [F]ather is more capable than Mother of 

encouraging and permitting frequent and continuing contact 

between the Child and the other parent, which is not supported 

by the record?

XI. Did the [t]rial [c]ourt err and/or abuse its discretion by 

stating that the parents had shared physical custody of the child 

since birth, which is not supported by the record?
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XII. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably found Mother intent upon restricting Father’s role 

in the Child’s life, is not supported by the record?

XIII. Did the [t]rial [c]ourt err and/or abuse its discretion in 

finding that Mother does not engage in afterschool activities, 

which is not supported by the record?

XIV. Did the [t]rial [c]ourt err and/or abuse its discretion in 

stating that Mother has had at least one paramour live in her 

residence, which is not supported by the record?

XV. Did the [t]rial [c]ourt err and/or abuse its discretion in 

magnifying Mother’s relationships since the birth of the [C]hild, 

highlighting that Mother has two children with two different 

fathers and is suggesting that primary custody of the Child would 

interfere with Mother’s social and romantic life, while minimizing 

Father’s relationships including the birth of an additional child 

born after the separation of the parties?

XVI. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably found that Mother chooses to forgo travel time 

with the Child, which is not supported by the record?

XVII. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably found that certain patterns of Mother’s behavior 

impedes the Child’s relationship with Father and that Mother 

creates situations that frustrate Father, thereby justifying 

Father’s volatile behavior, which is not supported by the record?

XVIII. Did the [t]rial [c]ourt err and/or abuse its discretion in 

that it unreasonably minimized Father’s behavior toward Mother 

when it characterized it as inappropriate, and suggested that 

Mother deliberately provokes Father, which is not supported by 

the record?

XIX. Did the [t]rial [c]ourt err and/or abuse its discretion in 

unreasonably interpreting testimony to suggest that Father 

attempts to work with Mother with regard to the Child, which is 

not supported by the record?

XX. Did the [t]rial [c]ourt err and/or abuse its discretion in 

unreasonably interpreting the testimony to suggest that Mother 
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wants primary physical custody of the Child because it would be 

more convenient for her, which is not supported by the record?

XXI. Did the [t]rial [c]ourt err and/or abuse its discretion when it 

ordered that Mother’s custodial time would begin at 5:00 p.m., 

when it knew that would require Mother to wait somewhere for 

over an hour after work before being allowed to pick up the 

Child?

XXII. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably suggests that Mother desires that Father only 

see the Child once a month on a random schedule, which is not 

supported by the record?

XXIII. Did the [t]rial [c]ourt err and/or abuse its discretion in 

that it unreasonably inferred that Mother kept her older child 

from his biological father, which is not supported by the record 

or biological father’s testimony at the prior hearing?

XXIV. Did the [t]rial [c]ourt err and/or abuse its discretion in 

that it unreasonably did not give consideration to the fact that 

[F]ather refused to continue with co-parent counseling as 

ordered and as supported by the record?

XXV. Did the [t]rial [c]ourt err and/or abuse its discretion in that 

it unreasonably did not give adequate consideration to the 

extended family and friends of Child in close proximity to 

Mother’s home?

XXVI. Did the [t]rial [c]ourt err and/or abuse its discretion in 

that it unreasonably did not to give adequate consideration to 

the strong relationship that the Child shares with his sibling in 

Mother’s home?

XXVII. Did the [t]rial [c]ourt err and/or abuse its discretion in 

that it unreasonably did not consider the adverse effect Father’s 

uncontrolled anger toward Mother has on the Child, as well as 

the repeated unfounded reports to the police and the doctor?

XXVIII. Did the [t]rial [c]ourt err and/or abuse its discretion 

when it reached inconsistent conclusions, which are not 

supported by the record?

Mother’s Brief, at 23-31.
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Issue selection is a key hallmark of appellate advocacy. Mother raises 

an astonishing number of issues—28. This shotgun approach reeks of 

careless, uninformed appellate advocacy. Justice Robert H. Jackson warned 

of the dangers of this approach many years ago:

Legal contentions, like the currency, depreciate through 

overissue. The mind of an appellate judge is habitually receptive 

to the suggestion that a lower court committed an error. But 

receptiveness declines as the number of assigned errors 

increases. Multiplicity hints at a lack of confidence in any one. Of 

course, I have not forgotten the reluctance with which a lawyer 

abandons even the weakest point lest it prove alluring to the 

same kind of judge. But experience on the bench convinces me 

that multiplying assignments of error will dilute and weaken a 

good case and will not save a bad one.

Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral 

Argument,” at 129 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy 

Before the United States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)). This 

“much quoted” advice, unfortunately, “often ‘rings hollow’....” 

Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citing 

Ruggero J. Aldisert, J. “The Appellate Bar: Professional Competence and 

Professional Responsibility–A View From the Jaundiced Eye of the Appellate 

Judge,” 11 Cap. U.L. Rev. 445, 458 (1982)). But its importance cannot be 

overstated. See, e.g., Jones v. Barnes, 463 U.S. 745, 751-752 (1983) 

(“Experienced advocates since time beyond memory emphasized the 

importance of winnowing out weaker arguments on appeal and focusing on 

one central issue if possible, or at most on a few key issues”); Howard v. 

Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (“[O]ne of the most important 
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parts of appellate advocacy is the selection of the proper claims to urge on 

appeal. Throwing in every conceivable point is distracting to appellate 

judges, consumes space that should be devoted to developing the 

arguments with some promise, inevitably clutters the brief with issues that 

have no chance ... and is overall bad appellate advocacy.”); Aldisert, supra

at 129 (“When I read an appellant’s brief that contains more than six points, 

a presumption arises that there is no merit to any of them.”) 

Mother’s raising of such a staggering number of issues causes her 

another problem. The Rules of Appellate Procedure limit a principal brief to 

14,000 words, unless the brief does not exceed 30 pages. See Pa.R.A.P. 

2135(a)(1). Where the brief exceeds 30 pages, a certificate of compliance 

with the 14,000 word-count limit must be filed. See id.

Here, the substantive portion of Mother’s brief spans 54 pages and it 

fails to include a certificate of compliance. Rule 2101 underscores the 

seriousness with which this Court takes deviations from procedural rules, as 

it permits us to quash or dismiss an appeal for procedural noncompliance. 

Because Mother’s violation of the Rules of Appellate Procedure does not 

hamper our ability to dispose of the matters on appeal, we do not quash or 

dismiss the appeal. However, we conclude that all content of Mother’s brief 

beyond page 53, which correlates to the first 30 pages of the substantive 

portion of her brief, is waived for failure to abide by the Rules. 
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We recognize that all but Mother’s first nine issues, therefore, are 

waived. Even if the issues were not waived for failure to abide by the Rules 

of Appellate Procedure, we would conclude, based upon thorough review of 

the certified record before this Court, and in light of the foregoing applicable 

law, that the court did not commit an error of law or abuse its discretion in 

fashioning the custody order.

With these admonitions in mind, we proceed to the merits. Perhaps 

not surprisingly, none of Mother’s first nine issues has merit.

Our scope and standard of review in custody matters is as follows.

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

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

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

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

judge who viewed and assessed the witnesses first-hand. 

However, we are not bound by the trial court’s deductions or 

inferences from its factual findings. Ultimately, the test is 

whether the trial court’s conclusions are unreasonable as shown 

by the evidence of record. We may reject the conclusions of the 

trial court only if they involve 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) 

(emphasis added).

Further, we have stated:

[T]he 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 
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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)). 

Pursuant to the Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340, in 

considering modification of an existing custody order, “a court may modify a 

custody order to serve the best interest of the child.” 23 Pa.C.S.A. § 

5338(a). “The best-interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child’s 

physical, intellectual, moral, and spiritual well[-]being.” Saintz v. Rinker, 

902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Section 5328(a) 

provides the following enumerated list of factors a trial court must consider. 

§ 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.

(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).

 
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 (3) The parental duties performed by each party on behalf 

of the child.

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

education, family life and community life.

 (5) The availability of extended family.

 (6) The child’s sibling relationships.

 (7) The well-reasoned preference of the child, based on 

the child’s maturity and judgment.

 (8) The attempts of a parent to turn the child against the 

other parent, except in cases of domestic violence where 

reasonable safety measures are necessary to protect the 

child from harm.

 (9) Which party is more likely to maintain a loving, stable,

consistent and nurturing relationship with the child 

adequate for the child's emotional needs.

 (10) Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and special 

needs of the child.

 (11) The proximity of the residences of the parties.

 (12) Each party’s availability to care for the child or ability 

to make appropriate child-care arrangements.

 (13) The level of conflict between the parties and the 

willingness and ability of the parties to cooperate with one 

another. A party’s effort to protect a child from abuse by 

another party is not evidence of unwillingness or inability to 

cooperate with that party.

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

member of a party’s household.

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

member of a party’s household.

 (16) Any other relevant factor.
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23 Pa.C.S.A. § 5328(a); see also J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. 

Super. 2011) (stating that trial courts are required to consider “[a]ll of the 

factors listed in section 5328(a) . . . when entering a custody order”). 

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 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). . . . 

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

Instantly, the trial court considered all of the Section 5328(a) custody 

factors and delineated the reasons for its decision in its opinion that 

accompanied the subject order. See Trial Court Opinion, 3/3/16, at 2-14. 

The trial court found Section 5328(a)(1), (4), (8), (9), and (10) in favor of 

Father, and it found the remaining factors equal between the parties or not 

applicable in this case. With respect to Section 5328(a)(16), any other 

relevant factor, the court explained its rationale, in part, as follows.

Father (and the home/community setting Father offers) provide 

the Child with a nominally more supportive environment than 

does Mother in her home/community setting, and, further, given 

both parents’ employment in [the School District of Lancaster], 

the opportunity for both parents to have frequent contact with 

the Child during his waking hours is enhanced if primary physical 

custody of the Child is awarded to Father during the school year. 

Similarly, given both parents[’] occupations, the Child should 

have the benefit of optimizing his time with each parent during 

the school summer vacation, when a week-to-week shared 
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physical custody schedule is feasible and is likely to benefit to 

the Child’s relationships not just with both parents but with other 

family members.

Id. at 14.

In her first issue on appeal, Mother asserts that the trial court erred in 

failing to commence the custody trial within 90 days of the date that the 

scheduling order was entered pursuant to Pennsylvania Rule of Civil 

Procedure 1915.4(c). Mother requests that this Court reverse the custody 

order on this basis. The issue involves a pure question of law. Therefore, our 

standard of review is de novo, and our scope of review is plenary. See 

Harrell v. Pecynski, 11 A.3d 1000, 1003 (Pa. Super. 2011) (citations 

omitted). 

Rule 1915.4(c) provides: 

Rule 1915.4. Prompt Disposition of Custody Cases

. . .

(c) Trial. Trials before a judge shall commence within 90 days 

of the date the scheduling order is entered. Trials and hearings 

shall be scheduled to be heard on consecutive days whenever 

possible but, if not on consecutive days, then the trial or hearing 

shall be concluded not later than 45 days from commencement.

. . .

Pa.R.C.P. 1915.4(c).

Instantly, the record reveals that, by order entered on June 8, 2015, 

the trial court scheduled the custody hearing for September 1, 2015, at 

10:00 a.m., which was within the requisite 90-day period. Thereafter, 
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following a pretrial conference on August 19, 2015, by order dated August 

21, 2015, and entered on August 24, 2015, the trial court provided, in 

pertinent part, as follows:

The significance of this case being scheduled for a 10:00 a.m. 

starting time was discussed. As of the date of this Order, the 

[c]ourt has not received word that the 9:00 a.m. hearing has 

settled. The [c]ourt and counsel agreed that unless the 9:00 

a.m. case resolved by August 21, 2015, the hearing in this case 

will be rescheduled.

Order, 8/24/15, at ¶ 2. By order entered on September 2, 2015, the trial 

court re-scheduled the hearing for January 8, 2016, as a result of the 

unrelated case proceeding as scheduled at 9:00 a.m. on September 1, 2015. 

Thus, the custody hearing commenced approximately 128 days after the 

September 2, 2015 scheduling order.

However, Mother fails to provide any statutory or case authority to 

support her argument that a custody order shall be reversed on the basis of 

the trial not commencing within 90 days of the entry of the scheduling order, 

and nor are we aware of any. As such, we conclude that Mother’s issue is 

without merit. Mother’s first issue fails. 

In her second issue, Mother argues that the trial court erred and/or 

abused its discretion in denying her “request to bypass the custody 

conciliation conference and to refer this case directly for a trial.” Mother’s 

Brief, at 43. Mother baldly asserts that Pa.R.C.P. 1915.4-1 (Alternative 

Hearing Procedures for Partial Custody Actions) and Pa.R.C.P. 1915.4-3 

(Non-Record Proceedings. Trial) do not make custody conciliation 
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conferences mandatory. She complains that the court “caused inexcusable 

delay to this case by making the parties appear at a custody conciliation 

conference at which there was no hope of settlement. . . .” Id. at 44. 

Mother states in her brief that, on April 15, 2015, she “made her 

request to bypass the custody conference when she presented her Petition 

for Modification at Family Business Court, the local motions court in the 

Court of Common Pleas of Lancaster County. . . .” Id. at 43. The record 

reveals that by order the same date, on April 15, 2015, the trial court denied 

Mother’s request and scheduled a custody conciliation conference for May 

28, 2015.

The Rules referenced by Mother, along with Rule 1915.4-2, allow 

courts to adopt alternative hearing procedures in partial custody actions 

involving an office conference conducted by a conference officer. See 

Pa.R.C.P. 1915.4-1, 1915.4-2, 1915.4-3. The trial court properly observed, 

however, that Mother cites “no statute, rule of law[,] or local rule of 

procedure to support” her argument that it erred in not granting her request 

to proceed directly to a hearing in this case, and nor are we aware of any. 

As such, we conclude that Mother has waived this issue. See In re W.H., 25 

A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that issues are waived if 

appellate brief fails to provide meaningful discussion with citation to relevant 

authority); Pa.R.A.P. 2119(b). 
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In her third issue, Mother argues that the court erred and/or abused 

its discretion in deciding the parties’ school district dispute in a manner not 

consistent with its prior order. Specifically, Mother asserts that the prior 

agreed-upon order, dated May 14, 2014, directed that Child 

would attend kindergarten at the School District of Lancaster, 

but that the issue could be brought up in the future without 

prejudice. The modification petition was filed on April 15, 2015, 

in time to address the 2015-2016 school year, however [it was] 

not heard until [Child] was halfway through [his] first grade 

year. The trial court’s finding[s] were anything but nonprejudicial regarding the school district issue.

Mother’s Brief, at 45. 

The May 14, 2014 custody order incorporated the parties’ stipulation 

as follows, in part:

The Child shall be enrolled at, and attend, Buchanan Elementary 

for the 2014-2015 school year. The agreement for the [C]hild to 

attend Buchanan Elementary for the 2014-2015 school year shall 

be without prejudice to either party raising the ongoing school 

arrangement that will be in the Child’s best interests for 

subsequent school years.

Order, 5/14/14, at ¶ 1. 

We discern no prejudice by the trial court. Upon review, the court 

carefully and thoroughly considered the parties’ requests regarding the 

school district issue. Further, there is no evidence in the certified record that 

the court unnecessarily delayed the matter. We conclude that Mother’s 

argument is without merit. Mother’s third issue fails.

In her fourth issue, Mother argues that the trial court erred and/or 

abused its discretion in not permitting the testimony via telephone of the 
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mother of Father’s younger child.2 Specifically, Mother asserts that, “[t]he 

witness was central towards rebutting the self-serving testimony of Father 

regarding his parenting abilities, and central to determining the credibility of 

Father as well.” Mother’s Brief, at 46. 

The record reveals that Mother filed a petition for special relief on 

January 6, 2016, wherein she requested the testimony via telephone of L.C., 

whom she alleged is the mother of Father’s daughter and lives in Iowa. In 

the petition, Mother asserted that the witness “will substantiate some of the 

claims that have been made by Mother, and is necessary.” Petition, 1/6/16, 

at ¶ 6. The court denied the petition by order dated January 7, 2016. 

When we review a trial court ruling on admission of evidence, we 

must acknowledge that decisions on admissibility are within the 

sound discretion of the trial court and will not be overturned 

absent an abuse of discretion or misapplication of law. In 

addition, for a ruling on evidence to constitute reversible error, it 

must have been harmful or prejudicial to the complaining party.

An abuse of discretion is not merely an error of judgment, but if 

in reaching a conclusion the law is overridden or misapplied, or 

the judgment exercised is manifestly unreasonable, or the result 

of partiality, prejudice, bias or ill-will, as shown by the evidence 

or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).

Mother argues that, “[i]t is patently unfair and unreasonable that this 

witness, who knows Father intimately and resides in Iowa, was not 

____________________________________________

2

Father testified that, in July 2015, he learned that he has a four-year-old 

daughter who resides in Iowa, whom he has never met. See N.T., 1/8/16, 

244-245.
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permitted to testify at all. In contrast, one of [F]ather’s witnesses, [A.C.], a 

resident of Father’s neighborhood in Lancaster, Pennsylvania, was permitted 

by the court to testify by telephone.” Mother’s Brief, at 47. We disagree. 

Contrary to Mother’s assertion, there is no record evidence that the 

witness possessed any relevant knowledge in this case. Indeed, the record 

demonstrates that the witness lives in Iowa; the female child born from the 

relationship between her and Father is four years old; and Father learned of 

his daughter’s existence approximately six months before the subject 

proceedings and had yet to meet her. Upon careful review of the testimonial 

evidence, we discern no abuse of discretion by the trial court in this 

evidentiary ruling. 

Even if the court abused its discretion, we would conclude that it does 

not constitute reversible error as Mother fails to assert how she was harmed 

or prejudiced by the ruling. Mother’s fourth issue fails.

In her fifth issue, Mother argues that the trial court erred and/or 

abused its discretion in failing to examine in camera Father’s employment 

records. We disagree.

The trial court found that, “[d]uring 2014/2015 academic year, Father 

was on leave with pay due to his suffering a concussion after a fall at work 

and to due to an accusation by a student of inappropriate behavior. Father’s 

physical condition healed and the accusation was resolved in Father’s favor, 
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and he returned to work full time for the 2015/2016 academic year.” Trial 

Court Opinion, 4/15/16, at 10, ¶ 50 (footnote omitted). 

By order dated August 21, 2015, the court provided:

8. Counsel for Mother has subpoenaed Father’s employment 

records. Counsel for Father considers these records to be 

irrelevant. The court will examine Father’s employment records 

in camera with counsel present to ascertain relevancy as to proof 

of facts pertaining to parenting in the Child’s best interests 

and/or, potentially, for impeachment purposes. The content of 

such records shall be maintained in confidence except to the 

extent necessary for disclosure in the context of this litigation. 

. . . .

Order, 8/21/15, at 2, ¶ 8. The court explained, however, that it did not 

review the records in camera because “the School District of Lancaster filed 

a motion to quash the subpoena and the records were not produced. The 

motion was not disposed of, but Mother did not move to enforce the 

subpoena.” Trial Court Opinion, 4/15/16, at 10, n. 4.

Mother disagrees that a motion to quash was filed in this case. 

Nevertheless, she fails to assert in her brief that she obtained the records 

and provided them to the trial court for review. Therefore, we conclude that 

Mother’s argument is without merit. Mother’s fifth issue fails.

In her sixth issue, Mother argues that the court abused its discretion in 

its consideration of the Section 5328(a) custody factors, supra. Specifically, 

she states, “[f]or example, the factors involving extended families and the 

child’s sibling relationships clearly and importantly favor Mother. Yet, the 
J-A22021-16

- 20 -

trial court seems to have difficulty in merely stating that.” Mother’s Brief, at 

50.

With respect to Section 5328(a)(5), the availability of extended family, 

the trial court found that, “[b]oth sets of [maternal and paternal] 

grandparents are substantially involved with the Child’s life.” Trial Court 

Opinion, 3/3/16, at 5. The court further found that, “Mother has several 

members of her extended family (in addition to her parents) who reside in 

the community and who are involved in the Child’s life.” Id. The court 

specifically noted Child’s great uncle and aunt. With respect to Section 

5328(a)(6), the child’s sibling relationships, the court found, in part, that 

Child “has a half-sibling in Mother’s household, a brother who was 

approximately twelve years of age. . . .” Id. at 6. 

Upon careful review, we discern no abuse of discretion by the court in 

the weight it placed upon Section 5328(a)(5) and (6). As mentioned above, 

the court placed greater weight upon Section 5328(a)(1), (4), (8), (9), and 

(10), which it found in favor of Father. In addition, the court weighed under 

Section 5328(a)(16) the fact that both parents are employed by the School 

District of Lancaster. Therefore, the court concluded, “the opportunity for 

both parents to have frequent contact with the Child during his waking hours 

is enhanced if primary physical custody of the Child is awarded to Father 

during the school year. . . .” Trial Court Opinion, 3/3/16, at 14. Because the 

court carefully and thoroughly considered all of the Section 5328(a) factors 
J-A22021-16

- 21 -

in its opinion accompanying the subject order, and further explained its 

rationale for the custody order in its Rule 1925(a) opinion, we adopt the 

court’s March 3, 2016 and April 15, 2016 opinions as our own.3 Mother’s 

sixth issue fails.

In her seventh issue, Mother argues the court erred and/or abused its 

discretion in failing to “give any consideration to Father’s history of not 

testifying truthfully at a prior proceeding.” Mother’s Brief, at 51. Specifically, 

Mother asserts:

The trial court has used its faulty memory to base this decision 

on prior testimony when it serves Father. Yet, it does not 

remember the testimony of the father of Mother’s older son who 

testified at a prior hearing that Mother is a great mom. The trial 

court forgets that Father lied about his first suspension from his 

position as a school principal at a prior hearing, and the trial 

court forgets the testimony it heard at a recent support hearing 

involving Father when the mother of Father’s youngest child 

testified by telephone.

Id. 

Mother alleges evidence that is not a part of the certified record before 

this Court. “For purposes of appellate review, what is not of record does not

exist.” Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996) 

(citation omitted). Therefore, we have no basis upon which to analyze her 

claim. We conclude that Mother’s seventh issue is without merit.

____________________________________________

3

 The parties are directed to attach a copy of these opinions in the event of 

further proceedings in this matter.
J-A22021-16

- 22 -

In her eighth issue, Mother argues that the court abused its discretion 

in failing to “give any consideration to the fact that Father was suspended 

from his employment.” Mother’s Brief, at 52. The crux of Mother’s argument 

is that the court failed to weigh against Father his paid leave during the 

2014-2015 school year due, in part, “to an allegation of inappropriate 

behavior by a student.” Id. We reject Mother’s claim. Based on the court’s 

finding, stated above, that Father was on paid leave due to suffering a 

concussion, as well as an accusation by a student of inappropriate behavior, 

both of which were resolved in his favor, we discern no abuse of discretion 

by the court in the weight it placed upon this evidence in fashioning the 

subject order. Mother’s eighth issue fails.

Finally, in her ninth issue, Mother argues that the court erred and/or 

abused its discretion in “finding that awarding primary physical custody to 

Mother would restrict Father’s contact with the child. However, the trial court 

goes on to award primary physical custody to Father without any analysis or 

consideration of how that award would minimize the child’s time with 

Mother.” Mother’s Brief, at 53. Mother’s claim is without merit.

In its opinion accompanying the subject order, the court stated, in 

part: 

Mother seeks primary physical custody of the Child not only 

during both the school year but also during the school summer 

vacation. She provided no credible rationale for limiting Father’s 

exposure to the Child your round. This arrangement would have 

a severe impact upon the Child’s time and, by extension, his 

relationship with Father.
J-A22021-16

- 23 -

Trial Court Opinion, 3/3/16, at 12. Further, the court emphasized in its Rule 

1925(a) opinion:

It is highly significant that Mother believes that during the 

extended time period when all three members of this triangular 

relationship - Mother, Father, and Child - are free of their fulltime “occupations”, i.e., during the school summer vacation, 

Mother should nonetheless have primary physical custody of the 

Child, with Father’s time with the Child being confined to a 

limited schedule plus two weeks of vacation. By contrast, Father 

supported an alternating week fully shared schedule of physical 

custody of the Child during the summer.

Trial Court Opinion, 4/15/16, at 19. We deem the foregoing conclusions 

reasonable in light of the court’s sustainable findings of fact. As such, 

discern no abuse of discretion in this regard. Mother’s ninth issue fails. 

Upon review, we conclude that the trial court carefully and thoroughly 

considered Child’s best interests in fashioning its custody award, and the 

record supports the court’s decision. Accordingly, we affirm the order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016
78 

Mother cited no statute, rule of law or local rule of procedure to 

support such relief. 

.was reached by the parties. The Custody Conference Officer 

Conciliation Conference was held May 28, 2015, and no agreement 

a Custody Hearing.1 The-Court denied this request. A Custody 

bypass a Custody Conciliation Conference and proceed directly to 

primary physical custody of the Child. Mother requested to 

included "New Matter" which was in essence a counter-claim for 

to Petition for Modification on the same date; Father's pleading 

"Child"). The Plaintiff (hereinafter, "Father") filed an Answer 

Custody on April 15, 2015·, seeking, inter alia, primary physical 

P.F. 

custody of the parties' child, ~~ (hereinafter, the 

Mother filed a Petition for Modification and Contempt in 

PROCEDURAL HISTORY 

"Mothern) filed a timely appeal on March 16, 2016. 

Order was entered on March 3, 2016. The Defendant (hereinafter, 

This appeal concerns a child custody case. A Final Custody 

OPINION SUR APPEAL 

"O I ,. ~ ~· ' ~.-1 

·I >t;;r: 

"\'::::, 

No. CI-09-09368 ~.Z· ,.., 

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0 <i> ;rJ "1 

~~ > 

~~·- ·~ .·~ 

'·' ~ . (,/) 

:i,!,o '1' "'1 

• ,,q:i - • r 

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v. 

K.G.F 

~~~' n/k/a 

~)00(~ K.G.S 

Defendant 

~RE)1{x:xxxx~ J.S.F. 

Plaintiff 

IN THE COURT OF COMMON PLEAS OF LANCASTER ·COUNTY, PENNSYLVANIA 

CIVIL ACTION - LAW 

... 

Circulated 11/02/2016 10:28 AM 
79 

-2- 

As a courtesy to the parties and counsel, rather than compelling 

the parties, counsei, and witnesses to be ready to proceed on September 1, 

2015, regardless of the status of the case scheduled for 9:00 a.m. on that 

date, counsel were advised that if the 9:00 a.m. case came off the Court's 

schedule for any reason, the Court would advise them in sufficient time so 

they could be prepared to proceed with the Hearing on September 1. By the 

time the Court was advised by counae l in the case listed for 9: 00 a. m . that a 

settlement had been reached, it was too late for counsel to be prepared to 

proceed with the hearing on September 11 2015, and by agreement and without 

objection from either party the instant case was rescheduled to January B, 

2016, 

2 

February 17, 2016. 

Hearings were held on January 8, 2016, January 14, 2016, and 

educators by the School District of Lancaster. 

presently in the first grade. Both parents are employed as 

kindergarten during the prior academic year and where he is 

the School District of Lancaster, where he attended full-day 

as a result of which the Child would continue to attend school in 

that he should be granted primary physical custody of the Child, 

Cocalico School Dis~rict where she resides. Father's position is 

physical custody ~fter which the Child would attend school in the 

the subject of this appeal was that she be g~anted primary 

The thrust of Mother's Petition for Modification which is 

for September 1, 2015, at 10: 00 a. m. 2 

Order dated February 28, 2012, A Custody Hearing was scheduled 

share legal and physical custody of the Child pursuant to an 

maintained the present custodial arrangement in which the parties 
80 

-3- 

custody schedule because it lacked the consistency and routine he 

7. Father had concerns about the then current physical 

Child's well being. (N.T. 01/08/2016 at page 7) 

because she believed there was too much back and forth for the 

6. Mother did not like the then current custody schedule 

schedule. (N.T, 01/08/2016 at page 7 and page 247) 

exchanged several times each week on a rotating bi-weekly 

custody arrangement in respect to the Child whereby the Child was 

parties operated under a court order with a shared physical 

5·. Prior to the beginning of the present hearings, the 

(N.T. 01/08/2016 at page 234) 

School District ·of Lancaster since before the Child was born. 

4. Both parents have been employed as educators in the 

pages 234-235) 

District of Lancaster. (N.T. 01/08/2016 at pages 225-226 and 

3. Father also is employed as an educator in the School 

6 and page 54) 

District of Lancaster for eleven years. (N.T. 01/08/2016 at page 

2, Mother has been employed as an educator in the School 

3 I 2016) 

01/08/2016 at page 6 and page 244; Findings and Order dated March 

2009. He is hereinafter referred to as the "Child". (N.T. 

P.F. 

1, ~X, the child o f the parents, was born May 1, 

FINDINGS OFF ACT 
81 

-4- 

01/08/2016 at page 244 and N.T. 02/17/2016 at page 49) 

2015 when the second child was four years of age. (N.T. 

not learn that he is the parent of a second child until July of 

13. Father has a second child who is a girl. Father did 

12. Mother is comfortable with that arrangement in respect 

A.E. 

to JU(OOc' s father. (N.T, 01/08/2016 at pages 76-77) 

76 and pages 162-163) 

A.E. R.E. 

11. The biological father of ~~~a< is~~~, 

A.E. 

who sees~ about once a month. (N.T. 01/08/2016 at pages 75- 

stopped it again. (N .. T. 01/08/2016 at pages 115-117, 160 and 

Plaintiff's Exhibit 2, 01/08/2016) 

separated; she then stopped contact, reinstated it, and then 

(N.T, 01/08/2016 at page 68 and N.T. 01/14/2016 at page 19) 

A.E. 

10. Mother permitted Father to see Xl<~ after they 

9. When Father and Mother were an intact family, Father 

was substantially the "father" figure for Mother's son ~~-E. 

old and lives with her. (N.T. 01/08/2016 at pages 5 and page 7) 

A.E. 

8. Mother has another child, ~)E}~)~,)(~a, who is 12 years 

page 247) 

believes is in the Child's best interest. (N.T. 01/08/2016 at 
82 

-5- 

3 

L.V. 

Mother requested that the mother of Father's second child, ~Jlti 

~~' be permitted to testify against Father. Father objected as to 

relevancy. By Order dated January 7, 2016, the court denied Mother,.s request. 

Mother did not renew her request to have this witness testify on the record, 

and therefore Mother failed to preserve this ruling as an alleged error for 

review upon appeal. 

opposed to Buchanan Elementary School, the school the Child 

upcoming sohool year which is close to where she lives, as 

Reamstown Elementary in the Cocalico School District for the 

20. Mother desires that the Child attend school at 

01/08/2016 at page 6) 

19. The Child is presentiy in the first grade. · (N. T. 

(N.T. 01/08/2016 at page 49) 

18. Both parents attend the Child's medical appointments. 

page 65) 

relationship with the boyfriend. (N;·T. 02/17/2016 at page 55 and 

17. By the time of the final hearing, Mother had ended her 

at pages 52-53) 

respect to the children's various activities. (N.T. 01/08/2016 

boyfriend was very supportive of Mother and her children in 

16. Mother's boyfriend was known to the Child. Mother's 

8, 2016. (N.T. 01/08/2016 at pages 16-17) 

for seven months as of the time of the first hearing on January 

15. Mother had a current boyfriend whom she had been seeing 

does not divulge information.3 (N.T. 02/17/2016 at page 49) 

Father has not seen his second child because that child's mother 

14. Father's second child resides in Davenport, Iowa. 
83 

-6- 

(N.T. 01/08/2016 at pages 87-88) 

principal, to the Child's teacher, or to a guidance counselor. 

school nurse but she has not reported her concern to the 

Buchanan Elementary School. Mother reported her concern to the 

26. Mother is concerned that the Child is bullied at 

01/08/2016 at pages i2-13) 

in November of 201~, apparently while he was at school. (N.T. 

25. The Child sustained a puncture wound to his upper thigh 

Elementa~y School. (N.T. 01/08/2016 at pages 247) 

24. The Child has an established routine at Buchanan 

01/0ij/2016 at page 55 and pages 104-105) 

Elementary School offered only half-day kindergarten. (N.T. 

Elementary School offered full-day kindergarten while Reamstown 

23·. Mother agreed to that arrangement because Buchanan 

at page 55) 

regarding where the Child should attend school. (N.T. 01/08/2016 

The agreement was made without prejudice to future determinations 

agreed that the Child remain in the School District of Lancaster. 

22. As academic year 2014-2015 approached, both parents 

for five academic years. (N.T. 01/08/2016 at pages 54-5) 

21. Mother prefers Reamstown Elementary School based upon 

A.E. 

her personal experience with son~' who attended that school 

she works. (N.T. 01/08/2016 at page 6 and page 54) 

presently attends within the School District of Lancaster where 
84 

-7- 

27. The incidence of bullying within the School District of 

Lancaster is statistically insignificant. (N.T. 01/08/201~ at 

pages 110-111) 

28. Father's home is five minutes in travel time from the 

child's present school, Buchanan Elementary School. (N.T. 

01/08/2016 at page 105) 

29. Mother's home is thirty minutes in travel time from the 

Child's present school, Buchanan Elementary School. (N.T. 

01/08/2016 at page 106) 

30. If the Child attends Reamstown Elementary School, 

Mother will not be able to take the Child· to school or to pick up 

the Child from school due to her work schedule. (N. T. 01/ O 8/2 016 

at page 18 and page 100) 

31. There is greater racial and ethnic diversity among the 

student body at Buchanan Elementary School than there is at 

Reamstown Elementary School. (N.T. 01/08/2016 at pages 108-109) 

32. The Child is doing very well in school. (N.T. 

01/14/2016 at page 30) 

33 .. It would be traumatic for the Child to changes schools. 

(N,T, 01/14/2016 at page 17) 

34. Father avails himself of all opportunities to 

participate in events at the Child's school, (N.T. 01/14/2016 at 

pages 15-16) 
85 

-8- 

concerning behaviors regarding the Child, but Mother took no 

41. In October and November of 2015, Mother noticed 

(N.T. 01/14/2016 at page 21) 

Child is in her care and the Child has been injured as a result. 

40. Mother does not provide adequate supervision when the 

01/08/2016 at pages 78-80, 157-158 and 213-214, Plaintiff's 

Exhibits 11 and 12, 01/14/2016) 

grandfather during Mother1s periods of physic'al custody, (N,T, 

39. The Child has been subjected to injuries which caused 

A.E. R.E. 

bruising by~' by~' and by the Child's paternal 

(N.T. 01/08/2016 at page 93 and page 98) 

time with the Child to take the Child to after-school events. 

38. Mother has not facilitated Father having additional 

(N.T. 01/08/2016 at page 93 and page 98) 

of physical custody that Mother and the Child did not attend. 

several after-hours school related events during Mother1s periods 

37. Since the Child has attended school, there have been 

227) 

Elementary School, (N.T, 01/08/2016 at page 50 and pages 226- 

35. Mother attends parent-teacher conferences in respect to 

the Child at Buchanan Elementary School, (N.T. 01/08/2016 at 

page 50 and page 99) 

36. Father attends parent-teacher conferences in respect to 

the Child and the annual back to school night at Buchanan 
Sq 

-9- 

action with regard to these concerns. (N.T. 01/08/2016 at pages 

111-112) 

42. Father had enrolled the Child in counseling in 2013, 

but Mother does not believe that the child needs therapy. (N.T. 

01/08/2016 at pages 45-47 and pages 90-91) 

43. Father has a very loying relationship with the Child 

and Father. is attentive to the Child's needs. (N.T. 01/08/2016 

at pages 228-230 and page 251) 

44. Father ?Wns his home and has resided there for four 

years. (N.T. 01/08/2016 at page 233) 

45. Father provides ~n established schedule for the Child 

while the Child is in his physical custody. (N.T. 01/14/2016 at 

pages 7-9 and 11) 

46. The Child has several friends in Father's immediate 

neighborhood. (N.T. 01/08/2016 at page 255) 

47. Father and the Child occasionally entertain friends of 

the Child for sleep-overs at Father's home .. (N.T. 01/08/2016 at 

page 259) 

48. Mother has resided in her home for five and one-half 

years. (N.T. 01/01/2016 at pages 5-6) 

49. The Child spends significant social time at Mother's 

parents home during warm weather (as they have a swimming pool) 

and the Child socializes with extended family there. The Child 

is the youngest child among the group of cousins. (N.T. 
87 

-10- 

move to enforce the subpoena. 

Mother attempted to gain access to Father's confidential 

employment records. The Court, by Order dated 8/21/2015, was willing to 

examine the records in camera over Father's objection to relevancy. However, 

the school District of Lancaster filed a motion to quash the subpoena and the 

records were not produced. The motion was not disposed of, but Mother did not 

4 

the Child is strong. (N.T. 01/08/2016 at pages 132-133) 

custody of the Child because the relationship between Mother and 

Child would be hurt if Father was to have primary physical 

53. Mother does not believe that ~er relationship with the 

pages 42-43). 

periods of physical custody. (N.T. 01/14/2016 at pages 25-26 and 

during his periods of physical custody whereas Mother tends to 

have her extended family around the Child constantly during her 

52. Father prioritizes one-on-one time with the Child 

with the Child. (N.T. 01/08/2016 at page 240) 

devoted himself to maximizing every opportunity to spend. time 

51. During the year that Father was on paid leave, Father 

the 2015/2016 academic year.4 (N.T. 01/08/2016 at pages 237-240) 

resolved in Father's favor, and he returned to work full time for 

Father's physical condition healed and the accusation was 

and due to an accusation by.~ student of inappropriate behavior. 

with pay due to his suffering a concussion after a·fall at work 

50. During the 2014/2015 academic year, Father was on leave 

pages 195-196) 

01/08/2016 at pages 64-65, pages 153-154, page 165, page 175, and 
88 

-11- 

54. ·Father suggests that Mother should have custody.on 

school holidays that fall on her weekends and an expanded period 

of physical custody of the Child during the Christmas holiday 

school recess. (N.T. 01/14/2016 at pages 14-15) 

55. Mother would not encourage contact between Father and 

the Child if she were granted primary physical custody of the 

Child. (N.T. 01/14/2016 at page 22) 

56. Father earnestly attempts to co-parent with Mother. 

(N.T. 01/14/2016 at page 24) 

57. The Child is exposed to inappropriate movies for his 

age during Mother's custodial periods. (N.T. 01/14/2016 at pages 

59-60) 

58. Father's phone calls to the Child during Mother's 

custodial periods took place on a speaker phone with other people 

speaking in the background1 which makes it all but impossible for 

Father to have a conversation with the Child. (N,T. 01/14/2016 

at pages 60-62) 

59. Father sends Mother e-mails regarding co-parenting 

issues. (N.T. 01/08/2016 at page 92) 

60. Mother is generally uncooperative with Father regarding 

the Child. (N.T. 02/17/2016 at pages 52-55) 

61. Father has had one romantic relationship during the 

past several years. (N.T. 01/14/2016 at page 65) 
89 

-12- 

6 All of the factors stated in 23 Pa. c.s.A. § 5328 (a) were addressed 

in the Court's Memorandum Opinion and Order dated March 3, 2016, and will not 

be repeated herein. 

in the Child's education,· family life and community 1 if e. 

3. Father will provide greater stability and continuity 

between the Child and Father. 

is to encourage and permit frequent and continuing contact 

and continuing contact between the Child and Mother than Mother 

2. Father is more likely to encourage and permit frequent 

physical custody to Father during the school year.5 

and spiritual well-being will be best served by granting primary 

legitimately affect this· Child's ~hysical, intellectual, moral 

factors as delineated at 23 Pa. c.s.A. § 5328 (a) that 

1, The best interests of the Child, based upon the 

CONCLUSIONS OF LAW 

14 and 20) 

during the school summer vacation. (N.T. 01/14/2016 at pages 13- 

during the school year and a shared physical custody arrangement 

63. Father requested primary physical custody of the Child 

summer vacation. (N.T. 01/08/2016 at pages 127-129) 

educators who are fully available to the Child during the school 

year round, despite the fact that both Mother and Father are 

arrangement to her having primary physical custody of the Child 

62. Mother wishes to go from a shared physical custody 
90 

-13- 

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 

determination. 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 

follows: 

The Superior Court's role in reviewing a Custody Order is as 

herein and made part of this Opinion Sur Appeal. 

Order dated March 3, 2016. Those Findings are incorporated 

C.S.A. 5323(d). The Court complted with this provision in its 

record in open court or in a written opinion or order." 23 Pa. 

"[t]he court shall delineate the reasons for its decision on the 

as the "Custody Act", requires that when making a custody award, 

Chapter 53 (contained in the Domestic Relations Act), known 

The paramount concern in a child custody case is 

the best interests of the child, based on a 

consideration of all factors that legitimately affect 

the child's ~hysical, in~ellectual, moral and spiritual 

well-being. This determination is to be made on a case 

by case.basis. Speck v. Spadafore, 895 A.2d 606, 609 

(Pa.Super. 2006) (quoting Swope v. Swope, 455 Pa. Super. 

587, 689 A.2d 264, 265 (1997); citing Myers v. 

DiDomenico, 441 Pa. Super. 341, 657 A.2d 956, 957 

(1995). 

The polestar for thl;:l Court in a child custody proceeding is 

to determine the besi interest of the child. 

DISCUSSION 
91 

-14- 

In reviewing a custody order, our scope is of the 

broadest type and our standard is abuse of discretion. 

We must accept findings of the trial court that are 

supported by competent evidence of record, as our role 

does not include making independent factual 

determinations. In addition, with regard to issues of 

credibility and weight of the evidence, we must defer 

to the presiding trial judge who viewed and assessed 

the witnesses first-hand, However, we are not bound by 

the trial court's deductions or inferences from its 

factual findings. Ultimately, the test is whether the 

trial court's conclusions are unreasonable as shown by 

the· evidence of record. We may reject the conclusions 

cases: 

2012), reiterated the standard of review it applies in custody 

7289342, and citing C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa.Super. 

on A~ril 10, 2015, in the case of A,D,W, v. L.A.K,, 2015 WL 

The Superior Court, in its non-precedential opinion issued 

533 Pa. 354, 625 A.2d 613 (1993). 

Andrews, 411 Pa.Super. 286, 601 A,2d 352, 353 (1991) affirmed, 

Robinson, 538 Pa. 52, 57, 645 A.2d 836, 838 (1994); Andrews v. 

Dranko, 824 A.2d 1215, 12.19 (Pa.Super.2003) (citing Robinson v. 

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

'long as the findings are supported by competent evidence. 

As the trier of fact, this Court determines cTedibility, as 

With any child custody case, .the paramount concern 

is the best interests .of the child. This standard 

requires a case-by-case assessment of all the factors 

that may legitimately affect the physical, 

intellectual, moral and spiritual well-being of the 

child. J.R.M, v. J.E.A,, 33 A.3d 647, 650 (Pa.Super. 

2011) 

law, or are urrre aaoriab l,e in light of the sustainable 

findings of the trial court. 
92 

-15- 

of physical custody of the Child now in place remains in effect. 

Child's ability to continue to succeed in school if the schedule 

is before the Court is that both parents are concerned about the 

In the immediate setting, however, the compelling reason that it 

characterize it as anything other than a "high conflict" case. 

the Child's young life, and no one familiar with it would 

The instant· case has been before the Court many times during 

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 

suppqrt the court's findings or that there is a 

capricious disbelief of evidence. Id. at 18-19. 

[t]he discretion that a trial court employs in 

custody matters should be.accorded the utmost respect, 

given the special nature 9f the proceeding and the 

lasting impact the result will have on the lives of the 

parties concerned. Indeed, the knowledge gain~d by a 

trial court in observing witnesses in a custody 

proceeding cannot adequately be ~mparted 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 bane), we stated the following regarding an abuse 

of discretion standard: 

We have stated: 

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., supra, at 443. 
93 

-16- 

The Child is presently in the fir~t grade. School has 

become the Child's full-time occupation during the academic year. 

The parents ~re in agreement that it is not in the Child's best 

interest that he be shuttled back and forth between their homes 

during the. academic year. The distance and travel time between 

the parents' homes is a compelling consideration. Each of the 

potential academic settings has advantages and disadvantages. 

One may have slight educational advantages. One may have certain 

social and societal advantages. On balance, there i~ no "clea~ 

winner" in respect to the schools themselves. That result, in 

itself, is not unusual. 

However, there is a factor present in this c.ase which is 

atypical. Both parents are full-time employees of the School 

District of Lancaster. In the Court's estimation, this factor 

has distinct advantages for the Child. Both parents are 

accessible to the Child during their work days should any 

emergency arise. Both parents are accessible to the Child to 

attend school-related activities which occur after school. 

Depending upon their own professional schedules and flexibility, 

both parents are available to attend the Child's in-school 

activities. None of this accessibility and availability would 

pertain if the Child attends school in the Cocalico School 

District. Additionally, both parents are well familiar with the 

School District and have connections to and knowledge about its 
94 

-17- 

professional staff and curricula. Undoubtedly, both parents have 

gained insights about how to maximize the Child's educational 

experience within the School District of Lancaster. 

Further, while there is some inconvenience for Mother 

associated with school-related activities which occur later in 

the evening if the Child remains in the School District of 

Lancaster (as Mother would either have to stay in Lancaster or 

make a round trip home and back) , bot h parents would be 

substantially excluded from participating in the Child's inschool activities if the Child attended school in the Cocalico 

School District. At- minimum, they would be burdened by being 

forced to take leave or vacation, as any participation would 

ostensibly require a half-day away from their professional 

ass:j.gnments. 

On balance, this Court is of the opinion that it is in the 

Child's best interest that he remain a student in the School 

District of Lancaster. For the sake of the Child's· stability and 

consistency during the academic year, that determination 

mitigates in favor of placing the Child in Father's physical 

custody during those times when school is in session. That 

issue, however, is not the only issue. 

Not unlike- the rest of humanity, Father and Mother each have 

their positive qualities and each have their flaws. They each 

have unique and peculiar circumstances in· their lives, and their 
95 

-18- 

lives now intersect only in respect to their relationship with, 

and responsibility to, the child whom they share. Because of 

their inability to resolve their differences, it is this Court's 

obligation to strive to find what is in the Child's best interest 

going forward, based upon the record presented. 

The Court has attempted to identify in the above Findings of 

Fact the most salient realities which define a path centered upon 

the Child's present and future needs. That path, once laid out, 

led to the Court's determination that the best interest of the 

Child requires that primary physical custody of the Child be 

awarded to Father, at least for the time being. 

An assessment of Mother's behaviors disclose that, as 

suggested by Father, Mother is perfectly comfortable with 

minimizing the role that the fathers of her two sons play in 

their lives. That is the eet ab l Lshed arrangement in respect to 

her older son; apparently that boy's father is complacent about 

the arrangement. It is also evident in the manner in which 

Mother was willing to exclude Father from the life of her older 

child, to whom Father had fulfilled a paternal role, after Mother 

and Father's marriage dissolved. However, in the instance of the 

Child and Father, Father is anything but complacent in respect to 

his engagement with the Child. Father has steadfastly insisted 

that he should be afforded the right and the opportunity to 

actively parent the Child. There are numerous indications that 
96 

-19- 

Father has designed his life around his commi~ment to not only 

meet, but to exceed, the Child's needs in every respect. In 

response, Mother has thrown_obstructi~ns in Father's way at 

almost every opportunity, and has displayed a distinct motive to 

be uncooperative. It is not lost upon the Court that Father has 

the ability to be abrasive and abrupt at times, and that.the 

parties' inability to communicate is not exclusively Mother's 

fault. However, when the psychological and emotional needs of a 

child are at stake, it is incumbent upon the responsible adults 

to find ways to get beyond their personal differences, It is 

highly significant that Mother believes that during the extended 

time period when all three members of this triangular 

relationship - Mother, Father, and Child - are free of their 

full-time "occupations", i.e., during the school summer vacation, 

Mother should nonetheless have primary physical custody of the 

Child, with Father's time with the Child being confined to a 

limited schedule plus two weeks of vacation. By contrast, Father 

supported an alternating week fully shared schedule of physical 

oustody of the Child during the summer. As between the two 

parents in this case, it is this Court's assessment, based upon 

the factual record and the attitudes evident in their demeanor 

while on the stand, that Mother strays when measured against the 

statutory factors which favor parents who encourage a child to 

have meaningful relationships with both parents and which bear on 
97 

-20- 

att~mpts to turn a child against a parent (as s~ch attempts may 

be overt or subtle, as in the present case). This Court's 

analysis of thefe Key factors, and of the balance of the 

statutory factors, is extensively elucidated in the Findings and 

Order issued by this Court on March 3, 2017, which are the 

subject of the present appeal. 

In its Order, this Court has dir'ected an orderly arrangement 

which is intended to, and should, support the Child's needs while 

he is engaged in his academic studies. For those times while he 

is not so engaged, this Court has directed an orderly arrangement 

which is intended to, and should, enable both Mother and Father 

to have meaningful periods of time with th~ Child and which will 

enable the Child to enjoy relationships with his parents while 

also enjoying his time with his half-brother in Mother's home, 

his cousins and maternal grandparents at Mother's parents' home, 

and his neighborhood friends around Father's home. This overall 

arrangement is intended to, and should, provide balanced 

intellectual, social, and emotional enrichment opportunities for 

the Child in settings which are stable and nurturing. 

In another iteration of the definition of an "abuse of 

discretion", the Superior Court has stated: "[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 record to be either manifestly 

. ,,. 
98 

NOTICE OF ENHW OF onnt:.n on DECHEE 

PUHSUANT TOP/\. n.c.r: NO: ~!3(J 

NCHIFIC/ITION • Tiff /\TT/\CllU) DOCUMFNT 

llt\S DEEN r!Lf:[) IN 'fl !IS CM)f: 

PHOlllONOTAfW OF I.ANC/\S'l'EH CO., PJ\ 

IJ,l\Tf:: l/-/5-/ ~ 

-21- 

M. Lucile Longo, Esquire 

H0naman, Longo & Longo 

15 North Lime Street 

Lancaster PA 17602 

°'\rozefa K. Jackson, Esquire 

643 West Chestnut Street 

Lancaster PA 17603 

Copies to: 

Dated: April 15, 2016 

affirmed. 

that the Custody Order entered.on March 3, 2016, should be 

Mother's appeal lacks merit, and respectfully further suggests 

For all of the above reasons, the Court suggests tha t; 

CONCLUSION 

occurred in this case. 

and most certainly no abuse of this Court's discretion, has 

This Court respectfully submits that no error of judgment, 

A.2d 107, 111 (Pa.super. 2007). 

will, discretion will be abused." Bulgarelli v. Bulgarelli, 934 

unreasonable or the product.of partiality, prejudice, bias or ill 
561a 

~ffect the safety of the child. See 23 Pa. C.S.A. § 5328 (a). 

factors, giving weighted consideration to those factors which 

the best interests of the child by considering all relevant 

In ordering any form of custody, the Court must determine 

"Child") . 

factors which affect the safety of the child of the parents, 

. P.J.F.· 

~~)O®{i)Ot (date of birth May 1, 2009; hereinafter, the 

following findings, giving weighted consideration to those 

represented by Jozefa F. Jackson, Esquire, the Court makes the 

the Defendant (hereinafter, "Mother") was present and was 

was present and was represented by M. Lucile Longo, Esquire, and 

February 17, 2016, at which the Plaintiff (hereinafter, "Father") 

after hearings held January 8, 2016, January 14, 2016, and 

and the Plaintiff's Answer to Petition for Modification, and 

Modification and Contempt in Custody Order filed April 15, 2015, 

Upon consideration of the Defendant's Petition for 

FINDINGS 

K.G.F. 

~~XXK~ n/k/a 

~~~ K.G.S. Defendant 

v. No. CI-09-09368 

"t R•l'fl!i"J-');"Tl,rnt''~ Of:r:1cE ,\., • 1 .... l •. J • I . t ... ( 

LI .. ,.'·,,. ,··R l'A •.riv;-· .. ; I c , .. 

~~~ J.S.F. 

Plaintiff 

nnn>r·ri ~ uo r.-11 rn 

IN THE counr oF coMMoN PLEAs or LANcASTER':·coi:tN1't, 'i?ENNsYLvANIA 

CIVIL ACTION - 11tmdu1R. -3 PM 3: 4 a 

Circulated 11 /02/2016 10:28 AM 
562a 

-2- 

Based upon the testimony and other evidence admitted at the 

hearing, the Court makes the following findings in respect to the 

issue of custody of the Child: 

1. Which party is more likely to encourage and permit 

frequent and continuing contact between the child and another 

party. 

Father is more capable than Mother of encouraging and 

permitting frequent and continuing contact between the Child and 

the other parent. The Court issued its first Interim Order in 

this custody action on November 30, 2009. Father filed the 

initial petition for custody as Mother was attempting to withhold 

the Child from Father since the Child's birth. Apparently, from 

the evidence adduced during the most recent round of hearings, 

Mother remains intent upon restricting Father's role in the 

Child's life. 

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 wn ict: party can 

better provide adequate physical safeguards and supervision of 

the child. 

There is no issue of past or present abuse committed by a 

party or a member of the party's household. 
563a 

-3- 

3. The parental duties performed by eecti party on behalf 

of the children. 

Both parents are able to perform and have performed typical 

parenting duties. Since the Child's birth, the parents have been 

following a shared physical custody arrangement for the most 

part. Coming in to the present proceedings, the schedule called 

for a rotation wherein the Child, who is presently in the first 

grade, shifts physical custody between his parents frequently 

during the school week. 

4. The need for stability and continuity in the child's 

education, family life and community life. 

Mother requests an award of primary physical custody of the 

Child. If such were to be granted; a concomitant effect would be 

a change from the Child's present school in the School District 

of Lancaster ("SDL") to a school in the Cocalico School District. 

Each school district has its advantages and its disadvantages. 

The population in SDL is far more diverse, which is among its 

advantages. As both parents work as educators for SDL, they have 

the ability to discern and potentially implement choices for the 

Child in terms of teachers and educational placements. Cocalico 

may have an overall stronger academic performance quotient, but 

that is likely related to the socio-economic status of its 

population. The Child has, and will have, the benefit of a 

enriched learning experience through his family which should 
564a 

-4- 

enable his performance to be at the higher side of the academic 

performance curve in SDL. 

Mother expressed concerns that the Child has been bullied by 

classmates at SDL. Without minimizing the potential harm which 

may result if bullying behavior is unchecked, it must be noted 

that bullying is the complaint de jour and that bullying occurs 

among children of all backgrounds. Stories of bullying among 

students at elite preparatory schools are legend; there is little 

doubt that it occurs in SDL or that it also occurs in Cocalico. 

The question is whether the institution identifies the problem 

and responds appropriately. Here, there was concern about 

inadequate response. Again, given the professional nexus between 

both parents and SDL, it is anticipated that they have the 

ability to motivate institutional response should any bullying 

become problematic, especially if they can lay aside their 

personal enmity and work together toward that end. 

Father engages in after-school activities with the Child. 

Mother does not. While it is more convenient for Father to do 

so, Mother ends each school day close-by to the Child's school 

and it is not impractical for her to be more active than she has 

been to date. It is noted that when this family was intact, they 

lived in a place convenient to SDL. After separation, Mother 

chose to move to the Cocalico School District area, as she lived 

with her parents there for a period. 
565a 

-5- 

The scale tips to Father as the parent more able to provide 

stability and continuity in the Child's family life. While both 

parents have had a succession of paramours since they were an 

intact family, Mother has had at least one paramour live in her 

residence. In fact, Mother had her then-current paramour (yet 

another SDL teacher) testify on her behalf at one of the recent 

hearings, but by the time of the final hearing they were no 

longer together. 

In regard to community life, Father's home is located in a 

traditional neighborhood of modestly sized homes on smaller lots. 

There is a park nearby. The Child has the benefit of having 

other children of similar age who live nearby, and he has 

developed healthy neighborhood friendships. 

Mother's home is situated in a less compacted neighborhood 

in a rural town. The testimony suggested that most of the 

Child's social activity outside of the home during Mother's 

periods of physical custody occurs at the maternal grandparents' 

home, which is about one mile from Mother's home. 

5. The availab.ili ty of extended family. 

Both sets of grandparents are substantially involved with 

the Child's life. 

Mother has several members of her extended fami],y (in 

addition to her parents) who reside in the community and who are 

involved in the Child's life. Notably, there is a great uncle 
566a 

-6- 

and aunt who often transport the Child to school during Mother's 

pe~iods of partial physical custody. The uncle is a retired SDL 

educator; he testified that the time spent with the Child is 

enjoyable, and no doubt the Child is enriched by this 

relationship. At the same time, this travel time is time which 

Mother has available to her to spend with the Child which she 

chooses to forego for her convenience. 

6. The child's sibling relationships, 

The Child has a half-sibling in Mother's household, a 

brother who is approximately twelve years of age. This Child 

testified at the hearing. He·was mannerly and presented well. 

He indicated he has a good relationship with the Child. However, 

there are concerns that at times these two boys engage in "roughhousing" that may be too much for the Child, and the Child has 

sustained some injuries. 

Father has another child who is approximately 4 years of age 

and who resides in Iowa with her mother. Father has not 

established a relationship with this child; he testified that he 

only became aware of this child during the summer of 2015. At 

present, the Child, like Father, has no relationship with this 

half-sister to the Child. 
567a 

-7- 

7. The well-reasoned preference of the child, based on the 

child's maturity and judgment. 

The Court did not interview the Child due to his young age. 

Therefore, this factor is not relevant. 

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. 

The Court finds neither parent has actively attempted to 

turn the Child against the other parent, at least in terms of 

direct communication by a parent to the Child. 

There are concerns, however, about certain patterns of 

Mother's behavior which impede the Child's relationship with 

Father. Mother is generally unwilling to change the physical 

custody schedule if Father requests a reasonable modification. 

Mother creates situations that frustrate Father, such as in 

respect to Father's attempts to maintain telephone contact with 

the Child while the Child is in Mother's physical custody. 

Mother places the Child on a speaker phone while others are 

present ih the room, which undermines Father's opportunity to 

have a meaningful conversation with the Child. There was a 

suggestion that the Child prefers to use a speaker phone or does 

not know how to use a handset. Obviously, teaching the Child to 
568a 

-8- 

use a handset and instructing him about the value of private 

communication would take a few minutes. 

Mother did not believe the Child needed counseling in the 

past, and she did not participate when the Child was in 

counseling. 

In summary, Mother performs the minimal required interaction 

with Father pursuant to the current Order. She refuses to work 

with Father, Father attempts to work with Mother with regard to 

the Child, but to no avail, 

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. 

Both parents are capable of maintaining a loving 

relatiopship with the Child, Both parents are able to provide 

stability, consistency and a nurturing environment for the 

Child's emotional needs. Both parents are keen on nurturing the 

Child. However, Father has a more stable environment for the 

Child than does Mother, Father has furnished his home and has 

built his schedule around the Child's needs. His life revolves 

around the Child during those times when the Child is in his 

physical custody. By comparison, Mother has principal 

responsibility for parenting her older child (whether by design 

or by default in respect to that child's father). As proposed by 

Mother, she would see herself primarily parenting two boys with 
569a 

-9- 

two different fathers while maintaining a social and romantic 

life for herself. While this would not be impossible and often 

does occur, it is clear that at present Father is in a better 

position than Mother to devote time and attention to the Child. 

10. Which party is mo.re likely to attend to the daily 

physical, emotional, developmental, educational and special needs 

of the child. 

As previously noted, the Child is presently in the first 

grade. Both parents are educators and presumptively have had 

more formal education about child development than the typical 

parent. Mother is a more experienced parent· than Father, in that 

she has raised her older son to age twelve substantially by 

herself and by appearances she has done creditably well. 

However, again, Father is 100% committed to meeting the Child's 

needs in each of the specified respects except "special needs" 

(as the Child has no identified "special needs" at this time). 

11. The proximity of the residences of the parties. 

The parents live approximately 35 to 45 minutes apart by 

car, depending upon the amount of traffic. The parents are both 

educators working within SDL. They work at locations within the 

city of Lancaster which are relatively close to the school which 

the Child attends. A year ago Mother agreed that the Child 

remain in the School District of Lancaster. The basis of 

Mother's modification petition is she now seeks ·primary physical 
570a 

-10- 

move beyond their past animosity for the sake of the Child. 

not completed. At this juncture it is hoped the parents will 

, 

Co-parenting had been ordered by this Court before, but it was 

sadly, there is substantial conflict between the parents. 

cooperate with that party. 

another party is not evidence of unwillingness or inability to 

another. A party's effort to protect a child from. abuse by 

willingness and ability of the parties to cooperate with one 

13. The level of conflict between the parties and the 

have extended family who are available to care for the Child. 

Both parents are able to care for the Child. Both parents 

ability to make appropriate child-care arrangements. 

12. Each party's availability to care for .the child or 

such activities should she so choose. 

close-by to the Child's current school and may readily attend 

By contrast, Mother, due to her employment with SDL, already is 

school-related activities, including parent-teacher conferences. 

to participate in any of the Child's in-school or after-school 

School District, it will be burdensome or impossible for Father 

Lancaster County. If the Child attends school in the Cocalico 

District. The Cocalico School District is at the northern end of 

district where she resides, which is the Cocalico School 

custody and, as noted above, to enroll the Child in the school 
571a 

-11- 

her within the hearing range of the Child. The Court does not 

Mother claims that Father says inappropriate things about 

relationship where child custody is at stake. 

vigilance, they are not atypical in a highly conflicted 

concerns are understandable and, without endorsing hyperWhile Father may have displayed some hyper-vigilance, _his 

Mother asserts this behavior on the part of Father is troubling. 

injuries. The bruises were a result of typical childhood play. 

County Children and Youth Social Service Agency about the 

took the Child to a doctor. Father contacted the Lancaster 

The Child sustained bruises while in Mother's care. Father 

. There is no evidence to suggest that these concerns are valid. 

and for the Child when the Child is in Father's physical custody . 

Mother claims .she has concerns with Father's mental state 

16. Any other relevant factor. 

Court in respect to the Child's safety or welfare. 

member of the parent's household that presents a concern to the 

There is no mental or physical condition of a parent or a 

of a party's household. 

15. The mental and physical condition of a party or member 

either parent. 

There is no history of drug or alcohol abuse regarding 

member of a party's household. 

14. The history of drug or alcohol abuse of a party or 
572a 

-12- 

credit this testimony. While Father has at times said 

inappropriate things to Mother (not necessarily in the presence 

of the Child), Mother deliberately provokes Father in such a way 

that frustrates him. Certainly, both parents need to avoid 

verbal communication, non-verbal communication, and behavior 

patterns which tend to denigrate the other parent or to undermine 

the other parent's relationship with the Child. Father needs to 

control his remarks; Mother needs to refrain from provoking 

Father gratuitously. 

Mother seeks primary physical custody of the Child no~ only 

during both the school year but also during the school summer 

vacation. She provided no credible rationale for limiting 

Father's exposure to the Child year round. This arrangement 

would have a severe impact upon the Child's time and, by 

extension, his relationship with Father. It appears that Mother 

wants primary physical custody of the Child because it would be 

more convenient for her and the concomitant effect of 

substantially diminishing the Child's contact with Father is of 

little concern to her. The father of Mother's elder child is 

nominally involved with that child, and sees his child about once 

a month on a random schedule. Mother is apparently comfortable 

with that arrangement, and she desires the same outcome for the 

Child. When the parents were an intact family, Father was a 

"father figure" to Mother's elder child. Upon the parties' 
573a 

-13- 

separation, Mother stopped contact between Father and the halfsibling. subsequently, there was one outing which included 

Mother, Father, Mother's elder child, and the Child, which 

apparently went well. However, Mother has not followed-up with 

any opportunities to re-establish a relationship between Father 

and her elder child for that child's benefit. Again, 'this 

behavior raises concerns that Mother is inclined to diminish 

Father's role in the Child's life. 

While there are a number of considerations which lead the 

Court to enter the Order expressed below, the Court agrees with 

'Mother that it is not in the Child's best interest to continue 

shuttling him back and forth between the parents' homes while 

school is in session, given the distance between the parents' 

homes and the resulting travel time. Th~ Child is now of an age 

where he must embrace his education as his primary pursuit, with 

a reasonable balance between school and family/community life. 

At the same time, the Child has not yet reached the age where a 

week-to-week shared physicaJ: custody schedule will serve his 

needs; rather, as a first grade student and as Mother has 

suggested, it is preferable for the Child to be settled in one 

parent's home during the school week, so that he has stability 

and consistency in his daily schedule. This reality places the 

Court in the position of making a hard choice under less than 

ideal circumstances (such as would be the case if the parents 
574a 

-14- 

including, but not limited to, medical, religious and educational 

participate in the major decisions affecting the Child, 

the Child, such that each parent shall have the right to 

1. Father and Mother shall have shared legal custody of 

of birth May 1, 2009; hereinafter, the "Child"): 

AND NOW, this 3rd day of March, 2016, the Court enters this 

P.J.F. 

Order in this child custody action regarding~~~ (date 

ORDER 

parents but with other family members. 

likely to benefit the Child's relationships not just with both 

week-to-week shared physical custody schedule is feasible and is 

tii:ne with each parent during the school summer vacation, when a 

occupations, the Child should have the benefit of optimizing his 

Father during the school year. similarly, given both parents 

enhanced if primary physical custody of the Child is awarded to 

frequent contact with the Child during his waking hours is 

employment in SDL, the opportunity for both parents to have 

home/community setting, and, further, given both parents1 

nominally more supportive environment than does Mother in her 

home/community setting Father offers) provide the Child with a 

spending his nights). Upon reflection, Father ·(and the 

with the Child by both parents regardless of where the Child was 

lived in close enough proximity to allow for frequent contact 
575a 

-15- 

It is understood that at the Child's age and developmental level, 

frequent contact between the Child and both parents is to be encouraged. By 

including this provision, it is the Court's hope that Mother will be afforded 

frequent "as agreed" opportunities to spend time with the Child for activities 

after school or on school holidays (whether or not such activities are school 

related), It is noted that Father indicated in his testimony that he is 

willing to facilitate such contacts. 

l 

school in the school District of Lancaster. 

4. The Child shall continue to attend Buchanan Elementary 

(c) At such other times as the parents may agree.1 

5:00 p.m.); and, 

beginning of school on Thursday (or, if there is no school, until 

(b) Every Wednesday from after school until the 

until Sunday at 5:00 p.m., commencing Friday, March 4, 2016; 

(a) On alternating weekends, from Friday at 5:00 p.m. 

Mother during the school year as follows: 

3. Partial physical custody of the Child shall be with 

Father during the school year. 

2. Primary physical custody of the Child shall be with 

available. 

conferences involving the Child, as such information becomes 

basis regarding school programs, events, meetings and teacher 

provide the other parent with advance information on a timely 

appointments, as each may receive the same. Each parent shall 

programs and events and medical, dental, or other professional 

information on a timely basis regarding the Child's school 

decisions. Father and Mother shall provide to each other advance 
576a 

-16- 

3 The purpose· of this provision is to afford each parent the 

opportunity to travel and, potentially, to have a full week's vacation away 

from home with the Child after allowing for such travel. 

z For purposes of this Order, the ''summer break from school" ia 

defined aa beginning on the first Friday which is not less than three days 

after the last day the Child is required to attend school and ending on the 

last Friday which is not less that three days before the first day of school. 

at 6:00 p.m. 

holiday (Saturday) at 6: oo· p.m. until the evening of each holiday 

custody of the Child shall be from the evenirig before each 

Father's Day. The times for such holiday periods of physical 

Day, and Father shall have phys ica I custody of the Child on 

Mother shall have physical custody of the Child on Mother's 

6. Mother's Day and Father's Day: 

weeks. 3 

thirty (30) days in advance of their intended dates for vacation 

parent shall provide the other parent written notice at least 

parent's week twice during the school summer vacation. Each 

or her week to 5:00 p.m. on the Sunday following the end of such 

(b) Each parent shall have the option of extending his 

week. 

following Friday at 5:00 p.m., with Mother having the first such 

alternating weekly basis, from Friday at 5:00 p.m. until the 

Mother shall have shared physical custody of the Child on an 

5. (a) During the summer break from school2, Father and 
577a 

-17- 

7. Easter, Memorial Day, Independence Day and Labor Day: 

(a) In even-numbered years, Father shall have physical 

custody of the Child on Easter Sunday, Independence Day, and 

Thanksgiving Day, and Mother shall have physical custody of the 

Child on Memorial Day and Labor Day. 

(b) In odd-numbered years, Mother shall have physical 

custody of the Child on Easter Sunday, Independence Day, and 

Thanksgiving Day, and Father shall have physical custody of the 

Child on Memorial Day and Labor Day. 

(c) The times for such periods of holiday physical 

custody of the Child shall be from 6:00 p.m. the day before the 

holiday until 8:00 p.m. bn the day of the holiday. 

8. Christmas: 

(a) In 2016, Mother shall have physical custody of the 

Child from 2:00 p.m. on December 24 until 2:00 p.m. on December 

25, and Father shall have physical custody of the Child from 2:00 

p.m. December 25 until 2:00 p.m. on December 26. 

(b) In 2017, the schedule shall reverse. 

(c) For the balance of the Child's Christmas break, 

Father shal_l have physical custody of the Child from December 26 

to December 29, and Mother shall have physical custody of the 

Child from December 29 until the day before the school session 

begins in January. 
578a 

-18- 

9. Holiday and special day periods of physical custody of 

the Child shall have precedence over vacation periods and regular 

periods of physical custody of the Child. Vacation periods of 

physical custody of the Child shall have precedence over regular 

periods of physical custody of the Child. 

10. Unless the parents reach an alternative agreement, the 

parent receiving physical custody of the Child shall provide the 

transportation. 

11. All custody exchanges shall occur at the Manheim 

Township Police Department, 1840 Municipal Drive, Lancaster, 

Pennsylvania 17601 or, when the Child is being dropped off or 

picked up at the Child's school, at. the Child's school. 

12. Each parent shall permit reasonable telephone access to 

the Child by the other parent when the Child is in his or her 

physical custody. The Child shall be afforded privacy during the 

Child's telephone calls with a parent, and such calls shall not 

take place by way of a speaker telephone. 

13. Each parent shall accommodate the reasonable requests 

of the other parent for alterations of any agreed upon schedule, 

as the circumstances and the best interests of the Child require. 

14. Each parent shall encourage the Child to love and 

respect the other parent and shall not state, nor allow others to 

state, in the presence of the Child, derogatory comments about 

the other parent. 
579a 

-19- 

FUTURE RELOCATION 

IF YOU ARE PROPOSING TO RELOCATE TO ANOTHER AREA WITH THE 

CHILD WHO IS THE SUBJECT OF THIS ORDER, YOU MUST COMPLY WITH THE 

REQUIREMENTS OF SECTION 5337 OF THE PENNSYLVANIA CUSTODY LAW 

WHICH INCLUDES SENDING NOTICE OF YOUR PROPOSED MOVE TO EVERY 

OTHER INDIVIDUAL WHO HAS CUSTODY RIGHTS TO THE CHILD .AND 

PROVIDING SPECIFIC INFORMATION CONCERNING YOUR RELOCATION. THE 

LAW MAY BE FOUND AT 23 Pa. C.S.A. § 5337. IF YOU DO NOT COMPLY 

WITH THE NOTICE PROVISION OR PROVIDE THE REQUIRED INFORMATION, 

THE COURT HAS THE ABILITY TO CONSIDER YOUR FAILURE AS AN ELEMENT 

IN THE CUSTODY OR RELOCATION DECISION. 

Mother's allegations that Father has willfully disobeyed the 

current Custody Order are dismissed for failure to prove willful 

disobedience required to establish a finding of contempt. 

CONTEMPT 

15. Each parent shall encourage the Child to have 

significant contacts with the other parent, and shall make 

certain that the Child is ready on time for the transfer of 

physical custody from one parent to another. 

16. Each parent shall immediately notify the other by 

telephone of any serious illness or other emergency that may 

arise while the Child is in his.or her physical custody. 
580a 

. .... ·' "( ]'. t .. ~ (°;/1,.:·. :: 

: ·.· . 

. ,· .. 

BY THE COURT: 

-20- 

Jozefa K. Jackson, Esquire 

643 West Chestnut Street 

Lancaster PA 17603 

M. Lucile Longo, Esquire 

Honaman, Longo & Longo 

15 North Lime Street 

Lancaster PA 17602 

Copies to: 

Attest: