J-A04044-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

K.W., N/K/A, K.S.,

 Appellee

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J.J.W.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1459 WDA 2014

Appeal from the Order Entered August 12, 2014,

in the Court of Common Pleas of Greene County,

Civil Division, at No(s): A.D. No. 385, 2004

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 06, 2015

J.J.W. (Father) appeals from the order entered August 12, 2014,

which, inter alia, reduced Father’s partial physical custody of his minor sons. 

Father also challenges the trial court’s July 31, 2014 order which sealed the 

record of the children’s interviews with the trial court and prohibited both 

parties’ counsel from any discussion of the interviews. Upon review, we 

affirm.

The trial court summarized the underlying facts of this case as follows:

This action involves twin boys, R.J. and T., born [in March 

of] 2004. The parents are K.L.S., [formerly K.L.W., (Mother)] 

and ... Father, who were married at the time of the boys’ birth, 

but separated shortly thereafter. [The trial court] last discussed 

this case at length in June of 2012. At that time [the trial 

court] continued the pattern that was first established in July of 

2008, providing that the parties had joint legal custody and that 

primary physical custody would be with Mother. Father would 

have in-custody visits from the first to the sixth day of each 
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month and from the fifteenth to the twenty-first day of each 

month. When this regime was initiated Mother lived in the 

Jefferson Morgan School District and Father lived in the Central 

Greene School District. When the boys started school, 

transportation was not much of a problem. At some point, 

Father began working in Wheeling, West Virginia and in 2011, 

moved to Valley Grove, West Virginia, a few miles west of the 

Pennsylvania line, near interstate 70. The custody schedule 

continued with someone, usually the paternal grandmother, [] 

driving the boys to and from school in Jefferson, Greene 

County. The trip takes about 50 minutes one way.

In 2010, Father petitioned for modification, but this 

request was later withdrawn. In September of 2011, Mother 

requested modification. Her request came to be heard by [a] 

Child Custody Hearing Officer and on November 3, 2011, [the 

Child Custody Hearing Officer] recommended that the existing 

custody order remain unchanged. Mother requested a hearing 

de novo. After several continuances [the trial court] heard the 

evidence and on June 25, 2012, [the trial court] issued 

essentially the same order. In March of 2014, Mother again 

requested modification. On May 7, 2014, the Hearing Officer 

denied the request, leaving in place the June 2012 order. 

Mother again requested a hearing de novo and [the trial court] 

heard the matter on July 31 and August 1, 2014. [The children 

were interviewed in chambers during the course of the hearing.]

Trial Court Opinion, 8/12/2014, at 1-2.

The trial court issued the order regarding the children’s interviews on 

July 31, 2014, and the custody order on August 12, 2014. Father then 

timely filed the instant appeal.

Father sets forth several issues for our review, which can be reduced 

to the following: whether the trial court erred and abused its discretion in 

(1) sealing the record of the children’s interviews and prohibiting the parties’ 

counsel from any discussion of the interviews, and (2) reducing the 
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children’s overnight visits with Father from eleven per month to six per 

month.

Father first argues that, in entering the July 31, 2014 order, “the 

[t]rial [c]ourt denied Father a due process right to be aware of and 

appreciate all testimony and evidence offered against him.” Father’s Brief 

at 20. Father further argues that the order restricted the ability of counsel 

to inform and consult with Father regarding the proceedings in contravention 

of Pennsylvania Rule of Professional Conduct 1.4 and, because Father could 

not be made aware of the children’s testimony, Father was not afforded the 

opportunity to offer evidence in response to it.1 

Upon review, we discern no reversible error with respect to the trial 

court’s July 31, 2014 order. Even assuming arguendo that the order was 

improper, we note the following.

When the court has come to a conclusion by the exercise of its 

discretion, the party complaining of it on appeal has a heavy 

burden; it is not sufficient to persuade the appellate court that it 

might have reached a different conclusion if, in the first place, 

 

1 The parties do not dispute that the trial court acted in accordance with 

Pa.R.C.P. 1915.11(b), which governs the procedure a court is to use in 

questioning children in custody actions:

The court may interrogate a child, whether or not the subject of 

the action, in open court or in chambers. The interrogation shall 

be conducted in the presence of the attorneys and, if permitted 

by the court, the parties. The attorneys shall have the right to 

interrogate the child under the supervision of the court. The 

interrogation shall be part of the record.

Pa.R.C.P. 1915.11(b).
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charged with the duty imposed on the court below; it is 

necessary to go further and show an abuse of the discretionary 

power. 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. 

Joselit v. Joselit, 544 A.2d 59, 61 (Pa. Super. 1988) (quotation marks 

omitted) (quoting In re Garett’s Estate, 6 A.2d 858, 860 (Pa. 1939)). 

Here, the findings of the trial court concerning what the children stated 

during their interviews were set forth in its opinion. Father fails to indicate 

in his brief any specific evidence he would have submitted, in light of the 

trial court’s findings, to rebut or support the children’s testimony had his 

attorney been able to apprise him of it earlier. Accordingly, Father has not 

persuaded us that the trial court’s order resulted in prejudice to him and that 

he is entitled to relief on this basis.

In his second issue, Father argues that the trial court erred and 

abused its discretion in reducing the children’s overnight visits with Father 

from eleven per month to six per month. We consider this issue mindful of 

the following.

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 
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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.

* * *

[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.

The primary concern in any custody case is the best 

interests of the child. 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 wellbeing. 

We must accept the trial court’s findings that are 

supported by competent evidence of record, and we defer to the 

trial court on issues of credibility and weight of the evidence. 

Additionally,

[t]he parties cannot dictate the amount of weight the 

trial court places on evidence. Rather, the 

paramount concern of the trial court is the best 

interest of the child. Appellate interference is 

unwarranted if the trial court’s consideration of the 

best interest of the child was careful and thorough, 

and we are unable to find any abuse of discretion.

R.L.P. v. R.F.M., __ A.3d __, 2015 WL 548639, *5 (Pa. Super. filed 

February 11, 2015) (citations and quotation marks omitted).
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Father argues that, as demonstrated by the evidence at the custody 

trial, the children were thriving under the prior custody arrangement and 

both parents exhibited a sufficient amount of cooperation such that a 

reduction in Father’s custody was improper. Father also claims that the trial 

court’s analysis of the factors in 23 Pa.C.S. § 5328(a) does not support a 

reduction in Father’s custody of the children, as only one factor—the wellreasoned preference of the children—appeared to weigh in favor of Mother. 

In this regard, Father further maintains that the trial court placed too much 

weight on the children’s preference, which was not in fact “well-reasoned,” 

given that the trial court found their testimony not credible with respect to 

the negative things they said about Father. Moreover, Father contends that 

the trial court failed to find that Mother has discouraged a meaningful 

relationship between the children and Father, despite evidence 

demonstrating that to be the case. Finally, Father argues that the trial court 

improperly considered the children’s participation in horse shows with 

Mother and a traffic violation committed by their paternal grandmother as 

independent factors for reducing Father’s custody time.

Upon analyzing the factors in section 5328(a), the trial court, who has 

lived with this case since 2004, explained that a reduction in Father’s 

custody was proper because the implementation of the existing schedule 

was not working. Trial Court Opinion, 8/12/2014, at 9. The trial court 

observed that the relationship between Father and the children continues to 
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deteriorate and that the children want nothing to do with him. Id. at 9-10. 

Moreover, the trial court explained that, although it did not find their 

statements painting Father in a negative light to be credible, it was 

significant that the children made the statements at all. Id. at 10. The trial 

court further suggested that counseling was the only possible way to mend 

the relationship between Father and the children.2 The trial court concluded 

that it was time to reduce the contact between Father and the children, as 

doing so would not harm their relationship, which could “hardly get worse,” 

and it was in everyone’s best interest to reduce the time spent commuting. 

Id. at 11.

In light of the above analysis, we discern no abuse of discretion. 

Moreover, Father’s arguments largely amount to a contention that the trial 

court should have interpreted certain evidence in his favor or otherwise 

challenge the weight the trial court attributed to the evidence and its 

credibility determinations, which we may not disturb on appeal.3 See R.L.P. 

 

2 The trial court explained that the parents and children were in counseling 

previously, “but that arrangement died away, apparently because of a lack 

of interest by Father.” Trial Court Opinion, 8/12/2014, at 10. 

3

Further, we reject Father’s argument that the trial court improperly 

considered the children’s participation in horse shows with Mother and a 

traffic violation committed by their paternal grandmother as factors for 

reducing Father’s custody time. The trial court included these considerations 

in the context of its analysis of the factors enumerated in section 5328(a). 

The trial court did not abuse its discretion in so doing.
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v. R.F.M., __ A.3d __, 2015 WL 548639, at *5. Thus, Father is not entitled 

to relief on this issue.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2015