J-S01012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.F.F., JR.

v.

B.E.F. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1436 MDA 2018

Appeal from the Order Entered July 27, 2018

In the Court of Common Pleas of York County

Civil Division at No(s): 2017-FC-000596-03

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 15, 2019

B.E.F. (“Mother”) appeals from the order granting D.F.F., Jr. (“Father”) 

sole legal custody, and primary physical custody, of the parties’ minor son, 

B.F. (“Child”) (born December 2009); finding Mother in contempt of a prior 

order of court; awarding Father $1,000.00 in counsel fees; and denying 

Mother’s petition for contempt.1 We affirm.

The trial court set forth the following factual and procedural history of 

this case:

The parties were married on June [] 20[0]1.[2] Father had a 

daughter, [Sa.F.], from a previous relationship. During their 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 Child’s sister, S.F., turned 18 prior to the conclusion of the custody trial. 

Accordingly, the order only addresses the custody of Child. 

2 The trial court acknowledged that its opinion contained a typographical error, 

listing the year of marriage as 2011. 
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marriage, the parties had two children, S.F. and [Child]. Father 

worked as a mechanic. Mother originally had her own business 

that she ran as a psychologist, where [Sa.F.] worked during high 

school. According to the testimony, Mother sold her business to 

become a stay-at-home [m]other and to homeschool S.F. and

[Child] when S.F. was in the fourth grade. Father was the primary 

financial provider for the family, but he did find time to coach 

S.F.’s soccer team. Mother did eventually start her own tea 

business in 2014 from the home.

In April of 2017, the parties separated. It is not disputed that 

Father had committed adultery during their relationship. On April 

5, 2017, Mother filed a Petition for a Protection from Abuse (PFA) 

Order against Father and a Temporary PFA Order was granted on 

the same date. On April 8, 2017, Father sent a message of “Hey.” 

The next day, Father sent Mother a text stating the first message 

was sent in error by his new phone. On April 12, 2017, Father 

sent Mother another message saying, “Here. A box out here if 

you want.” Father was indicating that he had arrived to pick up 

the children for a visit and had left a box on the sidewalk of 

Mother’s items. All of this happened prior to the time scheduled 

for a hearing for the final PFA had even occurred. Mother filed a 

Petition for Indirect Criminal Contempt (ICC) for Father’s text 

communication []. Father was arrested on April 13, 2017 for the 

ICC.

On April 20, 2017, the parties agreed to the entry of a Final PFA 

for a no contact order for a twelve (12) month period without 

admissions. The PFA did indicate that Father could contact S.F. 

as long as he did not discuss the PFA proceedings with her, but 

the Final PFA was silent in regards to [Child]. On May 25, 2017, 

Father pled guilty to the ICC and was sentenced with a fine and 

six months of probation. This conviction also extended the PFA 

for an additional year, with an expiration to occur on April 17, 

2019.

Father filed a Petition for Custody because he had not been 

allowed to see or talk with [Child]. At the conciliation conference, 

Mother admitted that she did not think that Father was a threat 

to the children, but she did request a threat of harm assessment 

be conducted. At this time, the parties shared legal custody. 

Mother was granted primary physical custody, and Father was 

granted partial physical custody on alternate weekends with 

Monday overnights on the alternate weeks. It was also requested 

that there would be an amendment to the PFA to allow contact 
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between the parties strictly as it relates to custody, which was 

granted on December 22, 2017.

Father filed a Motion for Contempt of the Custody Order on 

December 13, 2017. In his petition, he alleges two counts of 

contempt, specifically that Mother failed to permit Father to 

exercise shared legal custody when she unilaterally made medical 

decisions for [Child] and refused to take the child to the Urgent 

Care when the child was sick and throwing up. Father also alleges 

that Mother withheld physical custody from Father on his weekend 

from Friday, November 24, 2017[,] to Sunday, November 26, 

2017, with Mother alleging that the child was too sick to visit and 

even too sick to speak with Father on the phone. Mother still 

refused to take the child to the Urgent Care. Mother counter-filed 

with a Petition for Contempt of a Custody Order on January 17, 

2018. In her Petition, Mother also alleges two counts of contempt 

against Father. In the first count, Father was ordered to complete 

a Threat of Harm evaluation in the Interim Order and failed to 

timely complete the evaluation or provide Mother with a copy of 

the evaluation. Mother also alleges that Father arrived late to 

exchanges on two occasions, once on October 23, 2017 and once 

on November 12, 2017. Both petitions for contempt were 

reserved for time of trial.

Father did undergo a threat of harm evaluation[3] by Chad Shaeffer 

at Spirit Trust Associates. It is noted by the [c]ourt that delays in 

____________________________________________

3 A threat of harm evaluation is governed by 23 Pa.C.S.A. § 5329, which 

provides, in pertinent part:

(c) Initial evaluation.--At the initial in-person contact with the 

court, the judge, conference officer or other appointed individual 

shall perform an initial evaluation to determine whether the party 

or household member who committed an offense under subsection 

(a) poses a threat to the child and whether counseling is 

necessary. The initial evaluation shall not be conducted by a 

mental health professional. After the initial evaluation, the court 

may order further evaluation or counseling by a mental health 

professional if the court determines it is necessary.

***
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the evaluation were related to delay in payments. The evaluator 

found that Father posed a risk of harm to future paramours and a 

risk of harm to [Child] if custody would occur and [Child] were to 

have contact with Father’s paramour. Father disputes the 

evaluation. This determination was based in large part on the 

facts provided by Mother that w[ere] undisclosed to Father or the 

[c]ourt. The information was provided to the evaluator at the 

eleventh hour without Father being given an opportunity to 

respond. After the report was issued, Father wrote a letter to the 

evaluator in response, which he provided as a separate exhibit.

A Joint Stipulation was filed on March 27, 2018. Prior to the start 

of trial, both parties became aware that [Child] was suffering from 

gastrointestinal issues. The first two days of the [c]ustody [t]rial 

were held on March 29, 2018 and April 2, 2018. At that time, 

Mother alleged that [Child]’s gastrointestinal issues stemmed 

from Father giving the child a McDonald’s Happy Meal and sugary 

candy over Easter weekend. It was further indicated to the [c]ourt 

by Mother that [Child] had not been to the doctor since he was 

two weeks old. The [c]ourt was concerned with [Child]’s constant 

bouts of illness and vomiting, so this [c]ourt ordered that Father 

arrange for [Child] to have a medical appointment. The child had 

also had vision issues that Father had noticed and addressed by 

getting appropriate care and glasses for the child. Mother had not 

obtained glasses and was resistant to doing so. This [c]ourt then 

made a report to York County Office of Children, Youth and 

Families for investigation of medical neglect. Mother took over 

setting up medical treatment and, due to the PFA, effectively shut 

Father out of participation.

An additional day of trial occurred on June 14, 2018. Closing 

arguments by both parties were submitted via briefs on June 25, 

2018. 

Trial Court Opinion, 7/27/2018, at 1-4.

Prior to the custody trial, the court entered an interim custody order, 

awarding shared legal custody to Mother and Father, with Mother having 

____________________________________________

(f) Costs.--The court may order a party to pay all or part of the 

costs of the counseling and evaluations under this section.
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primary physical custody, and Father having partial physical custody on 

alternate weekends from Friday at 6:00 p.m. until Sunday at 8:00 p.m., as 

well as every Monday at 4:30 p.m. until Tuesday at 7:30 a.m. See Interim 

Order for Custody Pending Trial, 9/29/17, at 5-6. 

The order precluded Father’s family from having any contact with Child 

or S.F. See id., at 6. Further, the order required Father to obtain a threat of 

harm evaluation, although the order notes “Mother concedes that she does 

not believe that Father poses a current risk to the children . . .” See id., at 

3. 

Following three hearings, the trial court issued a detailed opinion and 

order on July 27, 2018. This order provided Father with sole legal custody 

and primary physical custody of Child. See Order of Custody, 7/27/18, at 1, 

4. It also granted Mother partial physical custody, on alternate weekends, 

from Thursday after school until the start of school Monday morning. See id.,

at 4. On the weekends Mother does not have physical custody, the order 

provides Mother with physical custody from Sunday at 6:00 p.m. until Monday 

at the start of school.4 See id. 

During summer, the order provides each parent with two nonconsecutive weeks of custody. See id. With regard to holidays, the court 

____________________________________________

4 The order contains specific times for the exchanges to the extent that Child 

does not attend a brick and mortar school.
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granted Father physical custody for all holidays, except Mother’s Day, 

concluding that Mother does not celebrate holidays. See id., at 5. 

The court also denied Mother’s petition for contempt, and granted 

Father’s petition for contempt, ordering Mother to pay Father $1,000.00. See

id., at 17, Trial Court Opinion, 7/27/18, at 28-29. The court also ordered 

Mother to pay the costs of the threat of harm evaluation. See Order of 

Custody, 7/27/18, at 17. Mother then filed this timely appeal.

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

1. Whether the trial court erred or abused its discretion when it 

changed the status quo of Mother as shared legal and primary 

physical custodian to sole legal and majority physical custody 

to Father when the trial court:

a. Relied on statements and facts not in evidence;

b. Discounted the testimony of the expert witness stating 

without evidence other than speculation of Father that 

Mother manipulated the [threat of harm] evaluation;

c. Did not permit Mother reasonable time to complete her 

testimony and refused to permit her to offer rebuttal to 

testimony proffered by Father’s witness;

d. Incorrectly determined that factors significantly weigh in 

favor of Father, discounting Father’s domestic violence, 

Mother as primary caregiver of the child since birth, [and] 

the child’s stability and wellbeing;

e. Failed to award any holidays to Mother in contraindication 

of the prior order of custody developing the record about 

holiday time celebrated by Mother;

f. Displayed various verbal and physical conduct towards 

Mother in its substitut[ing] its personal standard and bias 
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instead of maintaining neutrality, all of which tainted its 

determination of custody.

2. Whether the trial court erred or abused its discretion when it 

found Mother willfully disobeyed the court order in 

contraindication of Father’s own evidence.

3. Whether the trial court erred or abused its discretion when it 

found that Father was not in contempt of court for intentionally 

returning the child late multiple times, for his failure to obtain 

the [threat of harm] evaluation as ordered by the October 

pretrial and for the trial court’s decision to order Mother to 

reimburse Father for his [threat of harm] evaluation.

Mother’s brief at 22-23 (unnecessary capitalization and suggested answers 

omitted).

5

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

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

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

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

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

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

judge who viewed and assessed the witnesses first-hand. 

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

inferences from its factual findings. Ultimately, the test is whether 

the trial court’s conclusions are unreasonable as shown by the 

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

court only if they involve 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).

____________________________________________

5 Mother’s argument section does not align with her statement of questions 

involved, as Mother combines several sections into one argument. Further, 

Mother includes no argument regarding question three. 
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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 

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).

This Court has further defined our standard of review: stated the 

following regarding an abuse of discretion standard.

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

constrained by an abuse of discretion standard when evaluating 

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

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

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

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

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

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

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

omitted). With any custody case decided under the Act, the paramount 

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

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

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

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

in addressing a petition to modify custody. See E.D. v. M.P., 33 A.3d 73, 80-

81 (Pa. Super. 2011). Trial courts are required to consider “[a]ll of the factors 

listed in section 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 

33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). 
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These factors are:

§ 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). 

(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.
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(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.

23 Pa.C.S.A. § 5328.

Further, 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. Additionally, section 5323(d) requires the trial 

court to set forth its mandatory assessment of the sixteen 

[Section 5328(a) custody] factors prior to the deadline by which 

a litigant must file a notice of appeal. . . . 

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

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

required is that the enumerated factors are considered and that 

the custody decision is based on those considerations. A court’s 
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explanation of reasons for its decision, which adequately 

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

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (quotation marks and 

citations omitted).

Mother does not contend that the trial court failed to consider any 

specific factor. Rather, Mother asserts that the trial court incorrectly weighed 

the custody factors in favor of Father, discounting Father’s domestic violence,6

Mother’s role as the primary caregiver, and Child’s stability and wellbeing. 

See Mother’s brief, at 31. Mother argues that she was the primary caretaker 

for Child, including homeschooling Child, and recounts Child’s medical issues 

and her responses to them. See id., at 31-40. 

Mother also notes the trial court must consider the parental duties 

performed by each party on behalf of the child, and the need for stability and 

continuity in the child’s education, family life, and community life. See id., at 

40. Mother asserts that the trial court failed to take into consideration the 

stability of Child in uprooting him from his home and discontinuing his 

homeschooling, and failed to account for the activities he engaged in with 

Mother, including taking piano lessons. See id. Mother faults the trial court 

____________________________________________

6 Mother did not assert that the trial court erred in discounting Father’s 

domestic violence in her Rule 1925(b) statement. Accordingly, this issue is 

waived. See Krebs v. United Refining Company of Pennsylvania, 893 

A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to preserve issues by 

raising them both in the concise statement of errors complained of on appeal 

and statement of questions involved portion of the brief on appeal results in a 

waiver of those issues). Notwithstanding Mother’s waiver of this issue, the 

trial court appropriately considered Father’s history of abuse.
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for failing to consider the conditions in Father’s home, which include Father 

and Father’s paramour not coming home until at least 5 p.m., and the fact 

there are three other siblings, either step-siblings or half-siblings, in the home. 

See id. 

Further, Mother faults the trial court for failing to award her any holiday 

time, as Mother claims she presented evidence “that Mother does celebrate 

Jewish holidays.” See id., at 42. Additionally, Mother notes that the 

parenting plans submitted by the parties included holidays for both parents.7 

See id., at 42-43. Finally, in cursory fashion, Mother references the standard 

for awarding shared legal and physical custody, before encouraging this Court 

to reverse the trial court’s order. See id., at 43.

The trial court examined each custody factor in a thorough and 

comprehensive opinion. We briefly summarize the court’s findings as they 

relate to the custody factors raised by Mother. With regard to factor two,

consideration of abuse and safety of the child, the trial court recognized the 

prior PFA order against Father, as well as his guilty plea to Indirect Criminal 

____________________________________________

7 With respect to holidays, Mother asserts that there was testimony that she 

celebrates Jewish holidays. Mother’s reference to the record is related to 

testimony presented by her friend, M.B. While Father submitted a proposed 

holiday schedule alternating holidays, including Yom Kippur and Rosh 

Hashanah, Mother presented a holiday schedule that did not include any 

proposed schedule for Yom Kippur or Rosh Hashanah. See Mother’s Parenting 

Plan, at unnumbered 4. Father testified “holidays started dropping of[f] at 

[Mother]’s request . . .”, including Christmas, Easter and Halloween. See

N.T., 4/2/18, at 40-41. 
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Contempt. See Trial Court Opinion, 7/27/18, at 7-10. The court concluded 

factor two favored Mother. See id., The court also concluded that Mother 

engaged in medical neglect of Child based on her refusal to take Child to a 

doctor, and her lack of appropriate vision care for Child. See id., at 10-13. 

On factor three, the court observed that Mother performed more 

parental duties during the marriage. See id., at 13. However, the court noted 

that Father also performed parental responsibilities. See id., at 14. The court 

expressed concern about the fact that Child had not seen a doctor since he 

was two weeks old. See id., at 14. Further, the court believed that Mother 

isolates Child, not allowing the family to celebrate holidays, go to doctors, 

attend public school, or contact Father’s family. See id., at 16 The court 

determined factor three weighed in Father’s favor. See id., at 16-17. 

Similarly, in assessing factor four, stability and continuity in the child’s 

life, the trial court also weighed this factor in Father’s favor. See id., at 20-

21. The court again noted the isolation of Child at Mother’s home. See id.,

at 20. Additionally, the court “was impressed with Father’s fiancée, with whom 

Father now has a child. She remained calm in the face of aggressive 

questioning and tone by Mother’s counsel. She and Father appear to have a 

very stable relationship. . .” See id., at 19-20. The court also noted that 

Mother’s “attempts to turn the child against Father are subtle, manipulative, 

and insidious”, concluding that factor eight favored Father. See id., at 22-

23. The court observed Mother made Child sad by informing him that the rest 
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of the family was picking out a new dog while Child was in Father’s custody. 

See id., at 23. 

The court found that Mother is incapable of making reasonable childrearing decisions, concluding Mother had questionable judgment and attention 

to Child’s medical and educational needs. See id. at 28. It also found that 

Mother was more focused on control, as well as proving Father was a bad 

parent, than acting in Child’s best interest. See id. The court observed that 

Father was asking the right questions medically and attempting to assert some 

parental control, and Child was caught in the crossfire and being negatively 

impacted. See id. Accordingly, the court awarded sole legal custody, and 

primary physical custody, to Father. See id. The court awarded no holidays 

to Mother, other than Mother’s Day, because the holidays did not seem 

important to Mother. See id. at 20-21. 

The trial court, in a comprehensive fashion, considered and weighed all 

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

and assessments and seeks to have this Court to re-find facts, re-weigh 

evidence, and/or re-assess credibility in her favor. This, we may not do, 

absent an abuse of discretion. See C.R.F., 45 A.3d at 443. As we stated in 

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005):

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

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

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

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

court erred or abused its discretion. . . .
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(quotation marks and citations omitted). The trial court wrote a detailed and

exhaustive opinion discussing each factor. The trial court’s conclusions are

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

In Mother’s second issue, she faults the trial court for discounting the 

testimony of the expert witness, Chad Schaeffer, C.A.D.C., who was qualified 

as an expert by Father’s counsel, and testified with regard to Father’s threat 

of harm evaluation. See Mother’s brief, at 45. Mother recounts events of 

domestic violence that she contends were not in dispute. See id., at 45-48. 

Mother contends that the trial court erred in discounting these events, and the 

evaluator’s conclusion that Father exhibits a mild to moderate proclivity 

towards domestic violence. See id., at 45-54. Ultimately, Mother faults the 

trial court for not crediting the testimony regarding domestic violence, and for 

failing to find that Mother’s actions were appropriate. Mother correctly notes 

that “[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.” See 

Pa.C.S.A. § 5328(a)(13).

With regard to expert testimony, we have stated:

The trial court was under no obligation to delegate its decisionmaking authority to [an expert witness]. It is an abuse of 

discretion, however, for a trial court to dismiss as unpersuasive, 

and to totally discount, uncontradicted expert testimony.

Accordingly, while a trial court is not required to accept the 

conclusions of an expert witness in a child custody case, it must 

consider them, and if the trial court chooses not to follow the 

expert’s recommendations, its independent decision must be 

supported by competent evidence of record. 
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M.A.T., 989 A.2d at 19-20 (quotation marks and citations omitted).

The trial court discounted Schaeffer’s testimony, writing:

Due to the rushed nature of the report at the end without Father’s 

opportunity to respond, as well as the testimony as a whole by all 

witnesses to which the evaluator did not have access, the [c]ourt 

must reach a different conclusion. Notably, the testimony of S.F. 

in this case contradicts the findings by the evaluator that the 

relationship issues permeated the marriage. She indicated that 

she only became aware of conflicts between the parties near the 

end of the relationship. Additionally, Mother seems to be at least 

an equal player in the conflict. S.F. stated, “I just know that there 

was - it was bordering upon violence. I would hear her screaming 

and stuff at night, things breaking, and being thrown around.” 

There was also an incident where the daughter observed her 

parents fighting in which she was asked by Father to be a witness. 

None of the testimony indicated that Father was more at fault in 

these incidences than Mother.

Trial Court Opinion, 7/27/18, at 9-10.

Schaeffer concluded that Father would pose a threat of harm to Child,

while Father was interacting with a romantic partner or paramour, based upon 

his conclusion that Father engages in intimate partner abuse. See N.T., 

3/29/18, at 11. However, Mr. Schaeffer conceded that Mother’s “testimony 

more than any other source of information established that pattern, 

established that pattern [of abuse] more solidly than any other piece of 

information.” Id. at 42. Since the court found “Father was significantly more 

credible than Mother,” it was reasonable for the court to discount Schaeffer’s 

testimony. 

Essentially, Mother objects to the credibility determinations made by the 

trial court with respect to the issues regarding domestic violence. However,
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we defer to the credibility determinations of the trial court. See C.R.F., 45 

A.3d at 443. 

The trial court determined Father’s testimony was more credible than 

Mother’s testimony. See Trial Court Opinion, 7/27/18, at 8. It therefore

rejected Schaeffer’s opinion, which was based primarily on the credibility of 

Mother. The trial court appropriately considered the allegations of domestic 

violence, as well as Schaeffer’s expert recommendation, and its findings and 

conclusions are supported by competent evidence of record. We find no error 

of law or abuse of discretion.

In her third issue, Mother faults the trial court for relying on statements 

and facts not in evidence. See Mother’s brief, at 55. Initially, Mother notes 

the trial court’s opinion references the date of marriage as occurring in 2011 

rather than 2001. See id. Further, she contends the trial court erroneously 

concluded that a child abuse investigation was still ongoing, as the 

investigation was closed without a finding of abuse 11 days before the court 

issued its order. See id. Mother also asserts the trial court erred by

referencing Mother’s background to conclude that Mother knew a Section 5329 

evaluation would be costly, and sought one despite her knowledge that Father 

did not pose a risk to Child. See id., at 56. Mother then references several 

text exchanges between Mother and Father that she contends are not included 

in the record but are mentioned by the court. See id., at 58-59. 
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With respect to Mother’s and Father’s marriage occurring in 2001, rather 

than 2011, the trial court acknowledged this error but states the date of 

marriage was “not even a slight consideration. . .” See Trial Court Opinion, 

9/26/18, at 3. We conclude that this error is harmless. See In re M.T., 607 

A.2d 271, 281 (Pa. Super. 1992) (observing that an error must actually harm 

an appellant to justify awarding a new trial). 

Similarly, the trial court notes that although Mother asserts the 

investigation into medical neglect was closed prior to the court entering its 

opinion and order, the court was not made aware of the investigation’s 

closure. See Trial Court Opinion, 9/26/18, at 3. We discern no abuse of 

discretion, or harm for that matter, from the trial court’s reference to the child 

abuse investigation.

Mother also challenges the trial court’s observation that Mother knew 

the threat of harm evaluation would be costly. This issue also lacks merit. A 

court is entitled to reach inferences from the evidence presented utilizing 

common sense. See T.D. v. E.D., 194 A.3d 1119, 1130 (Pa. Super. 2018). 

Here, Mother testified she had a Master’s degree in clinical mental health 

counseling, as well as previous experience running her own counseling 

business, which had two offices. See N.T., 6/14/18, at 57-58. This 

background gave the trial court a sufficient basis to conclude Mother had a 

general knowledge of the costs associated with evaluations and counseling.
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With regard to the text messages, the text messages purportedly 

contain the following information from Father to Mother: “Hey”; a text 

message the following day saying that the previous text was sent in error due 

to Father having a new phone; and “Here. A box out here you will want.” See

Mother’s brief, at 58. We agree with Mother that a trial court generally may 

not consider evidence that is outside the record. See M.P. v. M.P., 54 A.3d 

950, 955 (Pa. Super. 2012). A court abuses its discretion when it relies upon 

outside information as the basis for its decision. Id.

Notwithstanding this general principle, we conclude that Mother has 

waived this issue. Mother’s brief acknowledges that Father’s written closing 

argument stated “details about the ICC, which were not in evidence or on the 

record.” Mother’s brief at 58. A review of the record reveals that it was 

Mother’s counsel who suggested: “He not only texted her things that were not 

relevant to the children, but he put a box at her door that she was unsure of 

what -- he said he had a box there for her.” N.T., 1/23/18, at 14. At the 

custody hearing, Mother’s counsel requested that the court take judicial notice 

of the PFA criminal contempt proceedings. See N.T., 6/14/18, at 181. The 

court granted Mother’s request. See id., at 182

Further, neither the record from the PFA, nor the ICC, is included in the 

certified record. It is well settled that we cannot consider anything which is 

not part of the record in this matter. See Jahanshahi v. Centura 

Development Co., Inc., 816 A.2d 1179, 1183 (Pa. Super. 2003). It is the 
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appellant’s responsibility to supply the appellate court with the complete 

record for appellate review. Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. 

Super. 2006) (en banc). 

Not only did Mother request that the court take judicial notice of the 

underlying records, she also has failed to ensure that they are included in the 

certified record.8 We therefore conclude that Mother has waived this issue.

In her fourth issue, Mother asserts that the court displayed improper

verbal and physical conduct towards Mother, and substituted its personal 

standards and bias instead of maintaining neutrality. See Mother’s Brief, at 

61. Mother notes that during the custody trial, the court made a referral to 

Children and Youth based on medical neglect. See id. Mother argues the trial 

court expressed repeated statements of concern for the medical welfare of 

Child. See id. Mother references Code of Judicial Conduct Rule 2.2, and faults 

the trial court for concluding that Child needed to see a medical doctor rather 

than a naturalist. See id., at 62-64. Mother asserts that the trial court’s 

demeanor intimidated Mother and Mother’s counsel. See id., at 64. Mother 

claims the trial court made inappropriate loud comments and gestures, rushed 

Mother’s testimony, and yelled at Mother. See id., at 64-67. As an example 

of the trial court rushing Mother’s case, she contends she did not have an 

____________________________________________

8 The reproduced record also does not contain these documents. 
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opportunity to rebut certain portions of Sa.F.’s testimony. Mother concludes 

that the court should have recused itself. See id., at 70. 

With respect to recusal: 

In this Commonwealth, a party must seek recusal of a jurist at the 

earliest possible moment, i.e., when the party knows of the facts 

that form the basis for a motion to recuse. If the party fails to 

present a motion to recuse at that time, then the party’s recusal 

issue is time-barred and waived.

Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017) (citations omitted).

To the extent that Mother challenges the trial court’s alleged bias or 

improper conduct, we conclude that Mother has waived this issue by failing to 

timely seek recusal. When Mother’s counsel expressed a hope that the court 

would “have an open mind at least to listen . . .”, the court stated that it would 

keep an open mind. See N.T., 6/14/18, at 14-17. At no point did Mother 

request recusal. Based on Mother’s failure to request recusal at all, let alone 

at the earliest possible moment, we conclude Mother has waived this issue.9 

With respect to the court’s decision not to allow Mother to rebut Sa.F.’s 

testimony regarding “witchcraft,” and Mother’s relationship with Sa.F., we do 

not discern an abuse of discretion. 

“Questions concerning the relevancy of evidence are within the sound 

discretion of the trial court and will not be reversed on appeal absent a clear 

____________________________________________

9 Moreover, even if Mother had not waived this issue, our review of the record 

reveals that the court’s actions towards Mother and her counsel were not 

improper, and that Mother and Father had essentially the same amount of 

time to testify. 
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abuse of discretion.” Sprague v. Walter, 656 A.2d 890, 907 (Pa. Super. 

1995) (citation omitted). Additionally, the standard of review of a trial court’s 

admission or exclusion of evidence is well established and very narrow: 

These matters are within the sound discretion of the trial 

court, and we may reverse only upon a showing of abuse of 

discretion or error of law. An abuse of discretion may not 

be found merely because an appellate court might have 

reached a different conclusion, but requires a result of 

manifest unreasonableness, or partiality, prejudice, bias, or 

ill-will, or such lack of support so as to be clearly erroneous. 

In addition, [t]o constitute reversible error, an evidentiary 

ruling must not only be erroneous, but also harmful or 

prejudicial to the complaining party. 

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007) (citation omitted).

Mother testified that Sa.F. worked for her at her counseling office. See

N.T., 6/14/18, at 109-10. Mother testified to concerns regarding Sa.F. when 

she found witchcraft books: “They were black witchcraft books. Just putting 

the pieces together, with putting things in my salad dressing, was she trying 

to do some type of spell, you know. . .” See id., at 177. Mother also claimed 

that Sa.F. attempted to poison her. See id., at 107-10. 

Sa.F. then testified. Sa.F. denied having “witchcraft” books, describing 

them as “young adult fictional novels like Harry Potter that most kids read.” 

See id., at 215. She denied attempting to harm Mother, and testified that 

she worked every week for Mother on two or three weeknights, as well as

eight hours on Saturday, and was paid $40.00 every two weeks. See id., at 

207, 260-61. 
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Mother’s counsel suggested that Mother should be permitted to respond 

to Sa.F.’s testimony because “she didn’t know that [Sa.F.] was going to lie to 

the degree that she - - that she did.” See id., at 261. The court then stated:

“. . . we’re done here.” See id.

The trial court’s refusal to allow Mother to provide rebuttal testimony 

was not an abuse of discretion. The court appropriately limited testimony 

regarding issues that had generally been covered, and were, at best, 

tangentially related to the issues in dispute. 

In Mother’s final issue, she asserts the trial court erred when it found 

Mother in contempt, and awarded Father $1,000.00 in counsel fees.

10

 Mother 

contends that the trial court demonstrated anger towards Mother based on 

her refusal of Father’s request to transport Child to an urgent care facility 

when Child vomited in November of 2017, and then refused Father custodial 

time because Child was sick. See Mother’s Brief, at 72. 

Mother claims that she was not comfortable traveling with Child because 

he was vomiting and wanted to rest. See id. Mother contends that she was 

texting Father about the situation and receiving responses from Father’s 

paramour. See id., at 73. Mother asserts that Child’s condition improved 

____________________________________________

10 Although Mother asserted the trial court erred in denying her petition for

contempt, and for assessing Mother the cost of the threat of harm evaluation,

in both her concise statement of errors complained of on appeal and her 

statement of questions involved, the argument section of her brief does not 

raise these issues. Accordingly, they are waived. See In re W.H., 25 A.3d 

330, 339 n.3 (Pa. Super. 2011).
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and she texted Father the next day to set up a custody exchange. See id.,

at 74. 

Mother claims that she did not hear from Father directly or for the 

balance of the weekend. See id. Mother explains that she did not understand 

why Father’s paramour was texting her rather than Father, and was 

attempting to do what was best for Child who was sick and too unwell to 

travel. See id., at 75. Mother claims she had no prior incidents where she 

violated an order of court. See id., at 76.11

The trial court observed that Father’s motion for contempt related to 

two events. See Trial Court Opinion, 7/27/18, at 28-29. The first occurred 

when Mother failed to permit Father to exercise shared legal custody when 

Mother unilaterally made medical decisions for Child and refused to take Child 

to the doctor when Child was sick and throwing up. See id., at 28. Further, 

the court noted that Father alleged Mother withheld physical custody from 

Father for three days, alleging Child was too sick to visit or speak with Father, 

while also refusing to take Child to the doctor. See id. The court found 

Mother in contempt of the interim custody order, and awarded Father 

attorneys’ fees of $1,000.00. See id., at 28-29. 

____________________________________________

11 Mother’s brief also asserts “[t]he trial court arbitrarily awarded Father 

reimbursement of attorney’s fees in the amount of $1,000.” Mother’s brief at 

75. However, Mother fails to develop this argument, and we therefore 

conclude that she has waived this issue. See In re W.H., 25 A.3d 330, 339 

n.3 (Pa. Super. 2011).
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As is the case with child custody orders in general, we review a contempt 

order in a child custody case for an abuse of discretion. See Garr v. Peters, 

773 A.2d 183, 189 (Pa. Super. 2001). 

In order to support of finding of civil contempt, the trial court must 

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

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

contemnor's violation was volitional; and (3) that the contemnor acted with 

wrongful intent.” Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa. Super. 2009)

(citation omitted). Generally, our case law provides that trial courts should 

comply with the following five elements to ensure due process in a civil 

contempt proceeding: “(1) a rule to show cause why attachment should issue; 

(2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt 

citation; and (5) an adjudication.” Id., at 1234-35 (citation omitted). 

However, compliance with all five of these elements is not mandatory. Id.,

at 1235. “[W]hen the contempt proceedings are predicated on a violation of 

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

notice of the violations alleged and an opportunity for explanation and 

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

(citation omitted).

The record supports the trial court’s determination. The record reveals

that Mother withheld custody from Father claiming Child was sick, but refused 
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to take Child to the doctor.12 See N.T., 6/14/18, at 23-25, 130-132; N.T., 

4/2/18, at 56-58. Although Mother asserts that Child got better the next day,

and that she reached out to Father to schedule a drop-off time, Mother then 

ignored text messages from Father’s paramour, who was the prior 

intermediary between Father and Mother due to the PFA, requesting when 

Child would be available for the custody exchange. See N.T., 6/14/18, at 23-

25; N.T., 4/2/18, at 56-58. Mother then blocked the text messages from 

Father’s paramour and, as a result, Father did not get to spend his birthday 

with Child. See N.T., 4/2/18, at 56-58. Given these circumstances, the trial 

court did not abuse its discretion when it found Mother in contempt.

For the foregoing reasons, we affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2019

____________________________________________

12 In Mother’s written closing argument, she argued that “[t]he parties position 

is to take a ‘sick child’ approach rather than a ‘well child’ approach, which 

corresponds to Mother’s and Father’s former religious beliefs. Thus, when the 

child is sick, he should be taken to the doctor, rather than [] scheduling ‘well 

child’ visits.” Mother’s closing argument at unnumbered 5. 
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