J-S57002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.M. 

Appellant

v.

C. McG.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1093 EDA 2018

Appeal from the Order Entered March 13, 2018

In the Court of Common Pleas of Bucks County 

Domestic Relations at No(s): No. 2011-62920-C

BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER**, J.

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 28, 2018

L.M.1 appeals from the March 13, 2018 order denying her “petition for 

special relief to dispose of [her] outstanding request to relocate.” We affirm.

We adopt the following factual and procedural history from the trial 

court’s opinions, which are supported by the record. See Trial Court Opinion 

(“TCO”), 1/23/18; TCO, 3/16/18; TCO, 6/20/18, at 2-6. 

C.McG., a transgender woman, and L.M., a cisgender woman, entered 

into a romantic relationship in 2005. In April 2010, L.M. gave birth to twins, 

E.M. and Lu.M. (collectively, “Children”), after being impregnated with

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* Retired Senior Judge assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.

1 L.M. is referred to in the trial court’s memorandum opinion as L.B., her birth

name. As L.M.’s appeal was filed using the surname of her current wife, we 

will refer to her in that manner.
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C.McG.’s banked sperm; both mothers are thus the biological parents of 

Children.

This matter was initiated in September 2011, following the parties’ 

separation. L.M. filed a petition for custody of Children. Following a hearing in 

December 2011, the court entered a temporary order awarding the parties

shared custody of Children. The order memorialized the parties’ agreement to 

undergo a private custody evaluation by Dr. Stephen R. Cohen, a psychologist. 

In October 2012, Dr. Cohen submitted a seventy-five page custody evaluation 

report, developed after extensive interviews of nineteen individuals, including

four interviews of the parties, and six psychological tests administered to L.M. 

and C.McG.

In February 2013, L.M. provided C.McG.with a notice of her proposed 

relocation to Macungie, Pennsylvania. C.McG. filed a notice of opposition to

the relocation and in March 2013, L.M. filed a motion for an expedited custody 

hearing. In April 2013, the court entered an order approving a stipulation 

between the parties, providing for shared legal and physical custody of 

Children in a fourteen-day alternating schedule, permitting L.M. to relocate to 

Macungie, which is in Lehigh County, and agreeing that all custody exchanges 

would occur at C.McG.’s residence in Bucks County, and that L.M. would 

provide all transportation for custody exchanges. L.M. and C.McG. agreed to 

undergo three co-parenting counseling sessions.

In July 2013, L.M. filed a petition to modify the custody order, seeking 

primary physical custody of Children because she wished to enroll them in fall 
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preschool in Macungie and had difficulty transporting Children. On December 

19, 2014, C.McG. filed a petition to modify custody, requesting Children reside 

primarily with her in Bucks County to attend kindergarten in the New HopeSolebury school district, and opposed another proposed relocation by L.M. 

from Macungie, Pennsylvania, to Watchung, New Jersey.

In January 2015, L.M. filed an answer to C.McG.’s petition, proposing 

Children reside primarily with her in Watchung, and argued that the move to 

Watchung did not qualify as a relocation because it did not significantly impair

C.McG.’s ability to exercise her custodial rights. No order was entered on the 

docket regarding the issue of relocation, but L.M. moved to Watchung, and 

Children, when staying with L.M., also lived in Watchung.

In July 2017, after a myriad of filings and fourteen custody hearings,2

the trial court read into the record an order in custody, providing that the 

parties would share legal custody of Children, and that primary physical 

custody would be with C.McG. during the school year, and partial physical 

custody with L.M. on the first and third weekends of each month from Friday 

at 5:00 p.m. to Sunday at 5:00 p.m. The physical custody would reverse in 

the summer on the first Sunday after school ended. L.M. was to provide all 

transportation. The custody order established additional provisions for 

telephone calls, vacation, holidays, and activities.

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2 Hearings were held April 27, 2015; July 6, 2015; October 22, 2015; October

23, 2015; January 7, 2016; May 9, 2016; May 10, 2016; July 21, 2016; July 

22, 2016; October 11, 2016; December 23, 2016; January 31, 2017; July 24, 

2017; and July 31, 2017.
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L.M. filed a motion for reconsideration on August 9, 2017. L.M. timely 

appealed the custody order to this Court, but, on October 10, 2017, her appeal 

was quashed. This Court noted per curiam that the July order was not final 

due to the fact that no order had been entered on the docket on a prior petition 

to relocate and because a written custody order had not been entered onto 

the docket.

3 See No. 2806 EDA 2017, Order, 10/10/17, at 1. The trial court 

entered a written custody order on September 21, 2017, memorializing the 

order read in court on July 31, 2017. 

On November 6, 2017, C.McG. filed a petition for special relief, seeking 

a finding of contempt and counsel fees against L.M. On November 8, 2017, 

L.M. filed a complaint for a writ of mandamus in the Supreme Court of 

Pennsylvania, requesting that the Court enter an order directing the trial court 

to dispose of her “request to relocate.” The writ was subsequently denied

although L.M. was granted leave to file original process. See No. 176 MM 

2017, Order, 12/11/17. On November 10, 2017, L.M. filed a petition 

requesting that the trial court recuse itself. On November 28, 2017, following 

a hearing, the trial court denied L.M.’s request for recusal. L.M. filed a motion 

for reconsideration, which the trial court later denied.

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3 With regard to the outstanding petition for relocation, it remained 

outstanding because a motion had been filed, but no order disposing of it had 

been entered on the docket. See, e.g., R.L.P. v. R.F.M., 110 A.3d 201, 206 

(Pa. Super. 2015) (noting that custody orders must be entered as separate 

written orders or as separate sections of written opinions). 
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L.M. filed a notice of appeal to this Court and accompanying statement 

of errors complained of on appeal, specifically from the trial court’s order 

entered November 28, 2017, which was the denial of L.M.’s request for the 

trial court to recuse itself. On January 11, 2018, by per curiam order, this 

Court quashed the appeal, as an order denying a motion to recuse is not a 

final order, and because the petition for relocation remained outstanding. See

No. 73 EDA 2018, Order, 1/11/18. 

On February 1, 2018, the trial court held a hearing on C.McG.’s petition

for special relief filed in November 2017. At the conclusion of the hearing, the 

trial court found L.M. in contempt of the July 31, 2017 custody order and had 

her committed to Bucks County Correctional Facility for ten days, ordered her 

to write a letter to the court explaining how she would abide by the order in 

the future, and to pay counsel fees in the amount of $12,265.75. See N.T., 

2/1/18, at 83-98.

On February 21, 2018, L.M. filed, in the trial court, a petition for special 

relief to dispose of her outstanding request to relocate. On March 13, 2018, 

the trial court issued a written order, entered on the docket, denying her 

petition as moot, because there was no pending request to relocate. See

Order, 3/13/18, at 1. 

L.M. timely filed a notice of appeal and accompanying statement of 

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

Her appeal is now ripe for our review.
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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).

[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 

cannot adequately be imparted to an appellate court by a printed 

record. 

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

With regard to the abuse of discretion standard,

[a]lthough we are given a broad power of review, we are 

constrained by an abuse of discretion standard when evaluating 

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

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

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

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

review of the record that there is no evidence to support the 

court’s findings or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations 

omitted).

“Our paramount concern in child custody cases is to determine the best 

interests of the child.” In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016) 
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(citations omitted). “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). 

The Child Custody Act sets forth the best interest factors that the trial 

court must consider. See 23 Pa.C.S.A. § 5328(a)(1)-(16). See also J.R.M. v. 

J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (stating trial courts are required 

to consider “[a]ll of the factors listed in section 5328(a) . . . when entering a 

custody order.”)

In L.M.’s first issue, she claims that the trial court committed an error 

of law and abuse of discretion in failing to analyze the relocation factors of 23 

Pa.C.S.A. § 5337(h)(1)-(10) because, as she contends, her request to relocate 

was still pending. See Appellant’s Brief, at 4-5, 15. L.M. acknowledges that 

she was already living in New Jersey, and so the procedural requirements of 

§ 5337 were not per se triggered; however, she argues that the relocation 

factors should have been considered in the context of the custody proceeding 

as Children traveled a significant distance. See id., at 15. We disagree. 

As noted, the relocation petition remained “open” because no written 

order was entered on the docket. The court’s order of March 13, 2018, closed 

the open motion by noting that the issue was moot, as L.M. had already moved 

to Watchung, had been living there for the past several years, and had herself 

averred that the move to Watchung was not actually a relocation. We see no 
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error or abuse of discretion in the court’s conclusion that there were no 

remaining relocation issues to determine. 

Next, L.M. claims that the trial court erred and abused its discretion in 

its analysis of the sixteen custody factors of § 5328(a). She contends that the 

court’s conclusions were unreasonable pursuant to the evidence of the record. 

See Appellant’s Brief, at 25. Essentially, L.M. takes issue with certain 

statements made by the trial court when analyzing the custody factors on the 

record; L.M. characterizes these statements as unsupported by the record. 

The court entered its analysis of the custody factors as follows:

We have to look at the factors mandated by the Supreme Court 

of Pennsylvania in any custody case, and we’ll do so. Which party 

is more likely to insure the health and safety of the child? The 

answer is obvious. They both are well-equipped, and have in the 

past and will in the future, insure the health and safety of both 

children.

Which party is more likely to encourage and permit frequent and 

continuing contact between the child and the other party? In my 

view, any impediments to the relationship are mostly created by 

[L.M.], who can find nothing positive about anything that [C.McG.] 

can do. But I think on balance both parents are likely to permit 

continuing contact between each because they know that it’s good 

for the children.

Is there any abuse committed? Absolutely none. There’s no risk 

of harm to any of these children. Can the parents perform parental 

duties on behalf of [Lu.M.] and [E.M.]? Of course. Is there 

extended family available? Yes, on both sides, and they are wellinvested in your children.

The next one I find to be especially important. Is there a need for 

stability and continuity in the child’s education and his family life 

and his community life? Yes. Where is that stability? Now and has 

been in New Hope. That’s where they grew up. That’s where 

they’ve been attached to. That’s where their roots remain. 
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Watchung only becomes an issue because [L.M.] decided to move 

there.

Sibling relationships? They have each other. They have a 

biological sister here in New Hope. Is there a well-reasoned 

preference of the child? No, of course not, and we wouldn’t 

consider it because of their age and their lack of maturity. I’m 

sure they would be happy no matter what the circumstances.

Has there been an attempt of one parent to turn the child against 

the other parent? No, not seriously. None that we can discern. 

Can [C.McG.] and [L.M.] maintain, on a consistent basis, a loving, 

nurturing and consistent relationship with the children? 

Absolutely. And at the same moment they are more than capable 

of attending to the daily, physical, emotional and developmental 

and educational needs of the children. Fortunately, there are no 

special needs.

The proximity of the residences of the parties. It is the crucial 

issue for this [c]ourt. An hour ride, 40 miles. It’s not 

inconsequential. I think [L.M.] says to herself, I’ve chosen to live 

there. No matter what, let’s have the children make that trek. As 

the children get older, it’s not easier. Had you stayed in 

Doylestown and had you moved to the New Hope area, and had 

you even stayed in Macungie, the prior Order would have been 

appropriate, but it’s no longer appropriate.

Are there abilities to make appropriate child-care arrangements? 

Yes, strongly. They each have their mother. What [L.M.] sees as 

a deficit is a plus. There is an au pair available to attend to the 

needs of the children so [C.McG.] can spend the amount of time 

that she should with them.

Is there conflict between the parties? Yes, there always is in 

custody cases. Is this insurmountable? No. They don’t like each 

other. I get it. Is there an inability to cooperate? No. There’s an 

unwillingness to cooperate. Is there a history of drug or alcohol 

abuse? I haven’t heard anything about [L.M.] drinking to excess 

since, but if it’s on either side, it’s there. She’s the one who had 

the DUI. She’s the one who blacked out. She’s the one who had 

to go to the Caron Foundation. She’s the one who imbibed to 

excess.
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The mental and physical condition of the parties. It is a neutral 

factor. They are both physically and mentally equipped to be able 

to deal with all the issues presented. There is no history of abuse 

in any fashion, parent to parent, parent to child. 

So these are the mandates I have to consider . . . 

N.T., 7/31/17, at 111-115.

L.M., in arguing that the trial court’s findings are not supported by the 

record, raises a myriad of issues regarding the court’s findings of fact and 

credibility determinations including, but not limited to, the court’s findings 

related to where the children grew up and have the most stability, which 

parent was responsible for impediments to the parties’ relationships, factual 

findings regarding L.M.’s use of alcohol and DUI, and other issues. See 

Appellant’s Brief, at 27-39.

As we have observed, the trial court is required to consider all of the § 

5328(a) factors in entering a custody order. While the court gives “weighted 

consideration to those factors which affect the safety of the child” pursuant to 

23 Pa.C.S.A. § 5328(a), we have acknowledged that “It is within the trial 

court's purview as the finder of fact to determine which factors are most 

salient and critical in each particular case.” M.J.M. v. M.L.G., 63 A.3d 331, 

339 (Pa. Super. 2013) (citation omitted). Put simply, the amount of weight a 

court gives any one factor is almost entirely discretionary. 

Essentially, L.M. disputes the trial court’s findings of fact, determinations 

of credibility, and the weight given to the voluminous evidence introduced at 

fourteen hearings. She questions the court’s conclusions, inviting us to re-find 

facts, re-weigh evidence, and re-assess the credibility of witnesses. This we 
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cannot do. We do not disturb the trial court’s findings of fact and 

determinations regarding the credibility and weight of the evidence absent an 

abuse of discretion, which we do not find in this case. 

Next, L.M. argues that the trial court committed an abuse of discretion 

and an error of law in relying on a custody evaluation made five years earlier, 

and not ordering a new evaluation. See Appellant’s Brief, at 40. She contends 

that the trial court’s emphasis on the evaluation’s thoroughness, and the 

weight put upon it, was inappropriate given the fact that there had been no 

update or supplement made within six months to one year. See id., at 40-41. 

In support of this argument, L.M.—impermissibly—cites to a single 

unpublished decision of this Court, in a child support case, observing in dicta

that the trial court had not placed much weight upon a custody evaluation 

performed three years prior to the master’s hearing. See Appellant’s Brief at 

4 (citing Carter v. Carter, No. 3817 EDA 2016 (Pa. Super., filed 11/30/17) 

(unpublished memorandum)). L.M. has cited no case law or any legal authority 

to support her claim, nor developed her argument beyond two paragraphs. 

Accordingly, we find that L.M. has waived this claim. See In re Estate of 

Whitley, 50 A.3d 203, 209-210 (Pa. Super. 2012) (noting that failure to cite 

to relevant legal authority constitutes waiver of the claim on appeal).

L.M. combines her next three issues into one. She contends that she 

was prejudiced by a direct conflict of interest; that her counsel was ineffective; 

and that the trial court did not respond to the harassment and intimidation of 

her witnesses by C.McG.’s counsel. See Appellant’s Brief, at 42. 
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With regard to the conflict of interest, L.M. avers that she was prejudiced 

by the fact that one of her prior five attorneys, Melanie Wender, Esquire, who 

represented her from December 2014 to October 2015, joined the law firm of 

counsel for C.McG., and Attorney Wender had not given L.M. notice of the 

potential conflict.4 See id. L.M. cites generally to two rules of professional 

conduct to support her argument, but does not cite to case law to further 

develop her argument regarding a conflict of interest or the prejudice caused 

thereby.

With regard to her claim of ineffective assistance, L.M. does not 

elaborate which of her five attorneys counseled her ineffectively, or provide

authority to support the application of a standard applied to the representation 

of attorneys in criminal matters to a regular custody matter. 

With regard to the alleged harassment by counsel, L.M. states that 

counsel for C.McG. followed L.M. and her wife into the hallway and said, “you 

better watch yourself,” called L.M. a liar on the witness stand, and 

impermissibly interacted with unnamed witnesses of L.M.’s while they were 

under oath. See id., at 42. L.M. does not cite to any authority to support this 

argument, or indeed, develop any argument beyond this bald statement of 

fact.

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4 L.M. also references a disciplinary board complaint filed in this matter. See

Appellant’s Brief, at 43. However, because the complaint is not a part of the 

certified record, we may not consider it on appeal. See Brandon v. Ryder 

Truck Rental, Inc., 34 A.3d 104, 106 n.1 (Pa. Super. 2011). 
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Here, L.M.’s failure to develop her arguments, cite to pertinent portions 

of the record to support her claims, or provide legal authority to support her 

averments, precludes us from review of her issues, and results in the waiver 

of her claims. See Estate of Whitley, 50 A.3d at 209-210.

Finally, L.M. combines her last two issues to argue that the trial court’s

conclusions were manifestly unreasonable and the product of partiality and 

bias. Although L.M. identifies comments made by the trial court that she 

contends show its bias, she does not cite to the pertinent place in the record 

where either these remarks or objections to the same may be found.5 Again, 

L.M. impermissibly cites to a single, unpublished case to define, generally, an 

abuse of discretion. See Appellant’s Brief, at 44. L.M. cites no case law 

regarding bias, recusal, or other relevant legal authority. Accordingly, she has 

waived this claim. See Estate of Whitley, 50 A.3d at 209-210.

Order affirmed. 

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5 While all appellants are required to make appropriate references to the 

record, see Pa.R.A.P. 2119(c), this lack is particularly egregious considering 

the voluminous nature of the notes of testimony. Cf. Philips v. Selig, 959 

A.2d 420, 428 (Pa. Super. 2008) (declining to find waiver where failure to 

comply with appellate rules has not impeded our ability to review the issues).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2018