J-A35015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.S.S., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

M.J.S.,

Appellant No. 850 WDA 2014

Appeal from the Order April 23, 2014

In the Court of Common Pleas of Allegheny County

Family Court at No(s): FD 10-007983-008

BEFORE: BENDER, P.J.E., BOWES, J., and DONOHUE, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 20, 2015

M.J.S. (“Father”) appeals from the custody order dated April 23, 2014, 

that was entered after two trials were held and an appeal was undertaken to 

decide the custody issues involving Father’s and J.S.S.’s (“Mother”) three 

children: C.S. ( born in April of 1997), A.S. (born in March of 2000), and 

T.S. (born in November of 2004) (collectively “Children”). After review, we 

affirm. 

This Court in Father’s previous appeal set forth the following history of 

this case, stating:

Mother and Father were married on July 22, 1995, and 

separated on April 5, 2010. Following an unsuccessful attempt 

to mediate their custody issues, Father filed a Complaint for 

Primary Physical Custody of the Children on July 22, 2010. 

Generations Education and Mediation programs were scheduled. 

On July 23, 2010, Mother filed a Complaint in Divorce, along with 

a counterclaim for primary physical custody of the Children.
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Father filed a Motion for Interim Custody in August 2010 in 

an attempt to obtain shared physical custody, which was denied. 

The parties then commenced co-parenting counseling ... and 

entered into an agreement for a shared custody schedule on a 

short[-]term basis. As the custody issue was not resolved by 

this agreement, the trial court ordered [a] psychological 

evaluation to be conducted by Dr. Eric Bernstein in January of 

2011. Upon completion of the psychological evaluation, a 

judicial conciliation was scheduled for April 6, 2011, but later 

rescheduled for March 28, 2011. 

Father filed a second Petition for Interim Custody. 

Pursuant to the recommendation of Dr. Bernstein, an Interim 

Custody Order was entered on March 15, 2011. Due to the fact 

that the parties could not determine a holiday custody schedule, 

the trial court entered another Interim Order on March 28, 2011, 

vacating all prior orders and reiterating the terms of the March 

15, 2011 order and adding additional provisions regarding coparenting counseling, holidays, and vacations. As the parties 

were still unable to reach an agreement as to holidays, the trial 

court entered an order on April 13, 2011, outlining a holiday 

custody schedule. The trial court scheduled a pre-trial 

conference for July 26, 2011. Father filed motions to obtain 

compliance with vacation provisions, as well as to allow the 

younger Children to attend the eldest child’s confirmation, which 

were granted by the trial court.

On August 18, 2011, the trial court scheduled a three-day 

trial for November 7, 15, and 29, 2011. The trial actually 

occurred on November 7, 15, 22, 23, and December 19, and 21, 

2011. An updated psychological evaluation was conducted 

during this time period. 

Following the custody trial, the trial court entered a 

custody order on January 18, 2012, outlining Mother’s and 

Father’s custodial periods for 2012, 2013, and 2014.[1] On 

February 1, 2012, Mother filed a Motion for Reconsideration of 

the January 18, 2012 custody order. The trial court granted 

____________________________________________

1 The January 18, 2012 order provided generally that the parties would have 

joint legal custody and that by 2014 they would have an equally shared 

physical custody arrangement without further review by the court. 
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Mother’s Motion for Reconsideration in part to allow for a review 

hearing before implementation of the trial court’s 2013 and 2014 

physical custody schedule in conjunction with a new 

psychological evaluation. A review hearing was set for 

November 19, 2012, and the trial court ordered an updated 

psychological evaluation to be completed before the review 

hearing. Hearings were held on November 19, and December 5, 

2012. The custody matter was not completed, and, on 

December 6, 2012, the trial court stayed the January 18, 2012 

custody order relating to the increased custody provisions for 

2013 and 2014.

Following the stay, Father allegedly engaged in various 

threatening conduct towards Mother, and she requested an order 

of no-contact, which was granted on an interim basis on 

December 18, 2012. Father filed a Petition for Protection from 

Abuse (“PFA”) on December 27, 2012, and the trial court 

dismissed Father’s PFA petition on January 13, 2013. On 

February 5, 2013, the trial court granted Mother counsel fees, 

reasoning that Father had filed his PFA petition in bad faith.

The custody proceedings resumed on March 8, and March 

11, 2013. By order dated March 14, 2013, and entered on 

March 18, 2013, the trial court made the physical custody 

provisions of primary physical custody to Mother and partial 

physical custody to Father, and shared legal custody to both

parties as listed in the January 18, 2012 order permanent. 

J.S.S. v. M.J.S., No. 641 WDA 2013, unpublished memorandum at 1-4 (Pa. 

Super. filed February 11, 2014) (J.S.S. I). 

To further provide a factual background for this case, we include a 

portion of the trial court’s opinion, dated May 23, 2013, which was written in 

conjunction with Father’s initial appeal to this Court, i.e., J.S.S. I. The trial 

court stated: 

During the marriage, Father travelled regularly for his career and 

was often away from the family for all but weekends, leaving the 

day-to-day care of the children to Mother. The parties separated 

in 2010. Both parties filed for primary custody of the children. 
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The parties were unable to negotiate an acceptable schedule 

and, ultimately, a trial was scheduled. 

I entered a custody Order on January 18, 2012, after five days 

of trial. I ordered the parties would share legal custody of their 

three children except for certain medical issues. With regard to 

physical custody, Father would enjoy partial custody every other 

weekend. On non-custodial weeks, he would have the boys for 

two weeknights and his daughter, [A.S.], for one night. Father's 

custody time was to gradually increase over a period of two 

years until the parties would ultimately share physical custody. I 

ordered reunification therapy for Father and daughter, [A.S.], 

and individual counseling for [A.S.]. 

I arrived at this scheme very deliberately in order to give Father 

time to gradually build his relationship with his children, 

especially with [A.S.]. Based on all the testimony, it was clear to 

me that the relationship between Father and daughter was very 

fragile and filled with contention, in great part due to Father's 

rigidity with regard to what he saw as “his time” with the 

children. Any contact [A.S.] had with Mother ... during “his time” 

was perceived by Father as purposeful interference by Mother 

and belligerence by daughter and resulted in various 

punishments for [A.S.] which served to increase her strife with 

Father. 

As noted, Father, who has a demanding career, had not been 

actively involved in the day to day lives of his children during the 

parties’ marriage but was determined to be so after the parties 

separated. While this is commendable, Father did not seem to 

recognize the need to take the time to allow his children to 

become accustomed to his new role. Mother was not faultless in 

this process, in my opinion. My concern, however, was not who 

to blame but how to bring the parties closer together without 

further stressing a clearly upset young girl. It was my hope that 

Father and daughter, through therapy and time, could gradually 

repair their relationship. 

After the trial, both parties filed motions for reconsideration and 

clarification. Mother asked that she be permitted to petition the 

court for a review of the custody situation, including updated 

psychological evaluations, before Father's increased custody 

went into effect. I granted that portion of her Motion on 

February 1, 2012, as I felt it was warranted. I do not, as a rule, 
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desire to put families and children through additional litigation, 

but, in this case, [I] was troubled by [A.S.’s] distress and by the 

general inability of these parties to agree on even the simplest 

aspects of their custody arrangements. The complete inability of 

the parents to co-parent on even the simplest level, despite their 

intelligence, education and social standing, was troubling. If 

that pattern of behavior could not improve, I deemed a review to 

be appropriate to determine if custody should be increased. 

Accordingly, a one[-]day review was scheduled for November 

19, 2012. When it was learned that the psychologist who 

performed the evaluations, Dr. Bernstein, was not available, a 

separate half day was scheduled for him to testify on December 

5, 2012. The case did not conclude on that date for a number of 

reasons, not the least of which was Father's late arrival on 

December 5, after his insistence that he be allowed to testify 

first that morning, prior to Dr. Bernstein. Because Father had 

insisted on testifying first, Dr. Bernstein was not in the 

courtroom to testify when the case was scheduled to begin. An 

additional day was ultimately set aside for this review at the 

earliest possible day on my calendar, which was March 8, 2013. 

Because the review was not complete, I entered an Order dated 

December 6, 2012[,] which stayed the implementation of the 

increasing custody for Father which was to begin on January 1, 

2013. In Paragraph 26 of his Statement, Father complains that 

this Order was entered without “notice, presentation, argument, 

hearing or response or otherwise in consideration of Father's 

position.” Contrary to this assertion, Father and his counsel 

were in court when Mother's counsel presented the proposed 

Order. Father's counsel requested a specific amount of time to 

provide this Court with their own proposed order, to which I 

agreed. Father did not provide that order. The statement, at 

Paragraph 25 of the Statement[,] that the Order was entered 

“suddenly[,]” is contrary to the statement of Father's counsel at 

the hearing on March 8, 2013 (3/8/13 TR p 252-255) 

acknowledging Father was to send his own proposed interim 

order. 

Father's counsel withdrew her representation of Father and on 

March 8, 2013, Father proceeded pro se. The review still did not 
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conclude and an additional hearing was held on March 11, 2013, 

concluding the review. On March 14, 2013, I entered the order 

which is the subject of this appeal.[2] 

Much like the custody trial, Father spent most of his time in this 

review pointing out what he saw as Mother’s faults, rather than 

focusing on the needs and best interests of his children. On the 

other hand, Mother expressed credible concern with supporting 

testimony and evidence about Father’s continuing and escalating 

problems with his daughter, and daughter’s increasing distress. 

(11/19/12 TR p 17 - 30). Mother’s testimony demonstrated to 

me that it was the best interest of her children which was in the 

forefront of her mind. (3/8/13 TR p 20). Mother’s expression of 

concern for her children was seen by Father as Mother[’s] 

attempting to profit economically through having more custody. 

(3/8/13 TR p. 195-199). My interview with the children on 

November 19, 2012 clearly indicated that Father’s behavior, and 

therefore the children’s relationship with him had deteriorated.

Father himself exhibited a demeanor in the courtroom that I 

found inappropriate. He used terminology that I found 

disturbing, such as his use of the term “self-help” (3/11/13 TR p 

126-127), “hostage taking” (3/11/13 TR p 56), and his 

statements to Mother that this would [] “all be over soon” 

(3/11/13 TR p 157). Though prompted often from the bench to 

introduce evidence which would demonstrate the 

appropriateness of an increase in his custody time, Father 

insisted on trying to put on his case through Mother. He focused 

only on behavior from the time period prior to the first hearing 

(3/11/13 TR p 57-59), and presented me with voluminous and 

unhelpful trial aids which he felt would demonstrate a conspiracy 

between Mother and her counsel - and this court - to deprive 

him of custody time. 

Ultimately, Father expressed his belief that the entire conduct of 

the case was somehow suspect. As proof, he referred to a letter 

from his former counsel wherein she notes that the case was 

erroneously listed on a filing receipt as being in front of a judge 

other than me. Father states that Mother’s counsel “switched” 

____________________________________________

2 The March 14, 2013 order is the order from which Father appealed in 

J.S.S. I. 
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the case to my docket. (3/11/13 TR p. 95-97). Father’s trial aid 

states[,] “Dad will always wonder why Judge Marmo isn’t 

involved.” 

Based on the evidence before me, and my observation of the 

parties and their children, I rightly found that an increase in 

Father's custody time would be detrimental to the children. As 

the best interests of the children is the primary concern in the 

formulation of a custody order, my March 14, 2013 Order should 

be affirmed.

Trial Court Opinion, 5/23/13, at 2-5 (unnumbered; footnotes omitted). 

On April 12, 2013, Father filed an appeal with this Court from the 

March 14, 2013 custody order, which was entered on the docket on March 

18, 2013. Upon review, this Court vacated the custody order and remanded 

the matter for the trial court to “expressly consider all of the section 5328(a) 

best interests factors in arriving at its custody decision....” J.S.S. I at 8. 

See 23 Pa.C.S. § 5328(a); J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 

2011) (stating “[a]ll of the factors listed in section 5328(a) are required to 

be considered by the trial court when entering a custody order”) (emphasis 

in original). The trial court responded by submitting an opinion that 

contained discussion regarding all sixteen custody factors. See Trial Court 

Opinion, 3/6/14. In that opinion, the trial court noted its recognition that it 

had not included a discussion of the sixteen factors in its opinion filed in 

conjunction with Father’s April 12, 2013 appeal. The court stated, however, 

that since its “analysis had not changed between the original January 18, 

2012 Order and the March 14, 2013 Order[,]” it believed it was unnecessary 
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to repeat its original analysis, which had included a discussion of the sixteen 

factors. Id. at 2. 

Following the issuance of the trial court’s opinion, Father filed a 

Petition to Confirm Custody—Reinstate Custody Order of January 18, 2012. 

Mother responded and on April 23, 2014, the trial court ordered the denial of 

Father’s petition, reinstating its March 14, 2013 order. Father then filed a 

timely appeal from the April 23, 2014 order. In essence, however, the 

issues raised in this instant appeal relate to the trial court’s March 18, 2013 

custody order. 

Father raises the following nine issues for our review:

1. Whether the trial court committed an error of law or abuse of 

discretion in finding that Father was not entitled to the expanded 

custodial time as outlined in the original Custody Order entered 

January 18, 2012[?] 

2. Whether the trial court committed an error of law or abuse of 

discretion in finding that the parties daughter, [A.S.], was 

harmed by spending more time with Father when there was no 

evidence from the Court appointed psychologist or otherwise to 

support this finding[?] 

3. Whether the trial court erred in not considering its own 

admission that Mother is equally culpable in failing to cooperate 

with Father[?] 

4. Whether the trial court committed an error of law or abused 

its discretion in drawing a negative inference from Father's 

withholding of consent to release records of [A.S.’s] treatment 

with Dr. Wollman, a practitioner who clearly made abhorrent 

mistakes in [the] treatment of [A.S.] to Father's detriment and 

indicated in casual statements her bias against Father[?] 

5. Whether the trial court committed an error of law or abused 

its discretion in granting Mother legal custody, especially with 

regard to the parties’ son, [C.S.], who has a unique masculine-
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related medical condition where he would especially need his 

Father’s involvement[?] 

6. Whether the trial court committed an error of law or abused 

its discretion by the scheduling of a review hearing back in 

February 2012 yet not to be held until November 2012 prior to 

implementation of her expanded schedule, as such review 

hearing essentially invited and incentivized Mother to sabotage 

the implementation of the Custody Order in every way 

possible[?] 

7. Whether the trial court committed an error of law or abused 

its discretion by precluding appeal or review of this matter in 

almost three years of proceedings by dangling the concept of 

shared custody before Father, but indulging continuances, 

review hearings, stays and ultimately vacating all prior orders, 

eliminating such shared custody time[?] 

8. Whether the trial court committed an error of law or abused 

its discretion in separating siblings in the custodial schedule[?] 

9. Whether the trial court erred as a matter of law and abused 

its discretion by entering a “no contact” order enforceable by the 

police as an Interim Order between the second and third days of 

the review hearings as this perpetuated a highly prejudicial 

environment to Father and, more significantly, circumvented his 

constitutional rights under the PFA statute[?] 

Father’s brief at 7-8. 

With regard to custody matters, our scope and standard of review are 

as follows:

[O]ur scope is of the broadest type and our standard is abuse of 

discretion. This Court 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, this Court must defer to the trial judge who presided 

over the proceedings and thus viewed 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 
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trial court only if they involve an error of law, or are 

unreasonable in light of the sustainable findings of the trial 

court. 

E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 

989 A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note that:

[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) 

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

2004)). 

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).

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 well-being. Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 

677 (Pa. Super. 2004)). 

Father first argues that the court abused its discretion by refusing to 

expand his time with the Children. He contends that nothing had changed 

since the January 18, 2012 order was entered that should have resulted in 

the court’s refusal to order an equal custody arrangement. Father 

particularly mentions the court’s reliance on the difficulties the parties have 
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had communicating with each other. Because this had not changed, Father 

claims that the court’s reliance on this factor was in error in that “the 

parties’ less-than-‘minimal’ communication is not supported by the 

evidence.” Father’s brief at 23. To support his argument, Father relies on 

B.C.S. v. J.A.S., 994 A.2d 600 (Pa. Super. 2010), which provides:

Shared custody in Pennsylvania is governed by 23 Pa.C.S. § 

5304: 

§ 5304. Award of shared custody

An order for shared custody may be awarded by the 

court when it is in the best interest of the child:

(1) upon application of one or both parents;

(2) when the parties have agreed to an award of 

shared custody; or

(3) in the discretion of the court.

23 Pa.C.S. § 5304. In Wiseman v. Wall, 718 A.2d 844 (Pa. 

Super. 1998), this Court identified factors the trial court is 

required to consider:

Among the factors which must be considered in 

awarding shared custody are the following: (1) both 

parents must be fit, capable of making reasonable 

child rearing decisions and willing and able to 

provide love and care for their children; (2) both 

parents must evidence a continuing desire for active 

involvement in the child's life; (3) both parents must 

be recognized by the child as a source of security 

and love; (4) a minimal degree of cooperation 

between the parents must be possible.

Id. at 848; see also In re Wesley J. K., 299 Pa. Super. 504, 

445 A.2d 1243, 1248-49 (Pa. Super. 1982). A minimal degree of 

cooperation does not 

translate into a requirement that the parents have 

an amicable relationship. Although such a positive 
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relationship is preferable, a successful joint custody 

arrangement requires only that the parents be able 

to isolate their personal conflicts from their roles as 

parents and that the children be spared whatever 

resentments and rancor the parents may harbor.

In re Wesley J. K., 445 A.2d at 1249 (citation omitted).

B.C.S., 994 A.2d at 602-03. Consequently, based on this discussion in 

B.C.S., Father asserts that this Court has not mandated that an amicable 

relationship between the parents is a prerequisite for shared custody. 

Rather, he contends that his and Mother’s “minimal” communication is 

adequate to support shared custody. Father’s brief at 25. Moreover, Father 

asserts that the court’s current custody schedule does not meet the 

Children’s best interests, but sends a message “that Father [is] a ‘less than’ 

parent[.]” Id. at 26. 

Father overlooks the reasoning behind this Court’s reversal of the 

order on appeal in B.C.S. The trial court in B.C.S. denied the father’s 

petition for shared custody based upon a personal, mistaken belief that the 

parties must “really [be] able to work well together and talk to each other 

frequently ... and be civil and cordial....” B.C.S., 994 A.2d at 603. Since that 

does “not comport with well-established precedent[,]” we vacated the trial 

court’s order and remanded for further proceedings. Id. (citing In re 

Wesley J.K., 445 A.2d 1243, 1249 (Pa. Super. 1982)). 

Here, the court focused on the best interests of the Children and, in 

part, relied on their opinions, namely, that they preferred being in Mother’s 
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care and that they had “some fear of their Father[.]” Trial Court Opinion, 

3/6/14, at 4. The court also noted that the Children felt Father “to be 

untruthful, ... that he tried to convince them their Mother did not want them, 

... [and] that Father pushes A.S.’s buttons and that he was irrational.” Id.

(internal quotation marks omitted). The court further indicated that:

While it was clear to me that the [C]hildren love their Father, it 

was equally clear that they are more comfortable in their 

Mother’s care and that A.S. does not think she loves her Father. 

She, in particular, has a damaged and complicated relationship 

with her Father that I hoped he would give [A.S.] care and time 

to heal. Instead, there were numerous examples presented 

wherein he caused her unneeded stress. He was unwilling to 

focus on rebuilding his relationship with her so it could continue 

into the future and instead focused on forcibly imposing his will 

on her in a fashion virtually guaranteed to further alienate them 

from each other. 

Id. at 5. Simply stated, Father’s allegations that the court’s findings are not 

supported by the evidence are incorrect. Father appears to be requesting 

that this Court re-find and/or re-weigh the evidence. However, as stated 

above, our standard of review requires that we “accept findings of the trial 

court that are supported by competent evidence of record, as our role does 

not include making independent factual determinations.” C.R.F., III v. 

S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). Therefore, we conclude that 

Father’s first issue is without merit. 

Likewise, Father’s second argument, which centers on A.S. and her 

relationship with Father, again would require that this Court revise the trial 

court’s findings in that he claims there is no support in the record for those 
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findings. Father relies on Dr. Bernstein’s testimony, citing a section of it that 

indicates an equal custody arrangement may lessen the tension between 

Mother and Father. See Father’s brief at 29. Father does acknowledge that 

Dr. Bernstein is not necessarily suggesting shared custody, i.e., changing 

the existing custody schedule, but Father questions whether an increase of 

four more days per month could be “greatly disrupt[ive....]” Id. Father’s 

argument appears to suggest that four days less custody per month creates 

the problems, but that four days more would “stop the bleeding.” Id. at 30. 

Again, we conclude that Father’s argument rests on an attack on the trial 

court’s findings, which are based on its credibility determinations to which 

we defer. Again, we conclude that Father is not entitled to relief.

Father’s third issue references Mother’s request for reconsideration of 

the January 2012 order that would have expanded Father’s custody over the 

next two years to reach equal, shared custody. Father accuses the court of 

creating hostility between the parties when it granted Mother’s 

reconsideration request, thus, giving “Mother the incentive to prevent Father 

from obtaining his expanded time in advance.” Id. at 31. He complains 

that Mother then could “sabotage and thwart all [his] attempts ... to prove 

himself to the court that he was worthy of additional custodial time.” Id. 

Father also contends that the continuing litigation had a “deleterious effect” 

on the Children because the custody issues went unresolved, a fact Father 

claims the Children blamed on him. To support this argument Father 
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identifies testimony presented by himself, Dr. Bernstein, Mother, A.S., and 

Father’s sister, discussing what each witness stated and concluding that “the 

court effectively ‘sanctioned’ Father” when it refused to reinstate the prior 

shared custody award. Id. at 37. Father provides no citation to authority 

and overlooks this Court’s inability to make factual determinations that 

contradict the trial court’s findings, which are supported by the evidence of 

record. This argument is also without merit. 

Father’s fourth issue involves his refusal to consent to the release of 

A.S.’s records of her treatment with Dr. Wollman, who Father contends is 

biased against him and made mistakes in her treatment of A.S. Father 

claims that the trial court drew a negative inference from his refusal to 

consent to the release and that, therefore, the custody order should be 

reversed. 

In response to this issue, Mother contends that the cases cited by 

Father are not applicable to the situation before this Court in that those 

cases discuss the confidentiality of mental health records. See e.g., Gates 

v. Gates, 967 A.2d 1024 (Pa. Super. 2009) (reversing trial court’s finding a 

mother in contempt for refusing to release her confidential mental health 

records in the context of a custody action). Rather, Mother asserts that 

Father’s concern was not the confidentiality of A.S.’s records of her 

treatment, but that his refusal was an attempt to block any biased 

statements about him that he believed Dr. Wollman would make. 
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In its May 23, 2013 opinion, the trial court addressed this issue as 

follows:

Dr. Wollman made a comment regarding Father which indicted 

that she may have harbored a bias against Father. However, 

there is actually no way for me or Dr. Bernstein to know if she

made “abhorrent mistakes” as Father states without seeing the 

records. I found that Father’s failure to consent to the release of 

those records to Dr. Bernstein demonstrated that he was not 

seeking to get information that might have assisted the 

psychologist, me, and, most importantly, himself, in reaching a 

better understanding of his daughter. 

I was disturbed by Father’s failure to sign the release. Any 

inference I drew from Father’s refusal to release Dr. Wollman’s 

records, however, had no [a]ffect whatsoever on my decision to 

not implement increased custody time for Father. I did not 

increase Father’s custody time because I do not believe it would 

be in the best interest of his [C]hildren to do so, based on all of 

the evidence before me.

Trial Court Opinion, 5/23/13, at 8. Father’s argument has failed to persuade 

us otherwise. Therefore, we do not conclude that the trial court abused its 

discretion. 

In his fifth issue, Father asserts that the court’s assigning limited legal 

custody of C.S. to Mother, in regard to C.S.’s medical condition for which he 

receives injections, is an abuse of discretion. Specifically, the March 14, 

2013 order provided joint legal custody of the Children, but added that if the 

parties could not agree “as to the course of [m]edical [t]reatment, including 

the selection of the professional provider, Mother’s determination shall 

prevail.” Trial Court Order, 3/14/13, at 2. The order also directed that 

Mother schedule the Children’s medical appointments with notice to Father 
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so that he can attend the appointments. Father believes he should be a part 

of the decision making process, relying on Hill v. Hill, 619 A.2d 1086 (Pa. 

Super. 1993). The Hill case concerned a situation in which the parents were 

awarded shared legal custody, but “[i]n the event of disagreement, 

[m]other’s preference [would] prevail.” Id. at 1088. On appeal, this Court 

held that the trial court had given “the father authority in name only and 

deprived him of a legal remedy because he was already awarded ‘share legal 

custody.’” Id. at 1088. We further stated that “the concept of shared legal 

custody does not contain the principle of giving one parent final authority in 

the event of a dispute.” Id. at 1089 (relying on In re Wesley J.K., 445 

A.2d 1243 (Pa. Super. 1982)). 

In response to this claim of error, the trial court explained:

The evidence presented regarding medical treatment 

demonstrated to me that Father is more concerned with 

interfering and exercising control over the scheduling of 

appointments for the [C]hildren than he is in making sure that 

they get appropriate treatment. He arbitrarily cancelled 

appointments scheduled by Mother for times when the [C]hildren 

would not miss school, rescheduled them for times when the 

[C]hildren would miss school, and then failed to attend those 

appointments and Mother took the [C]hildren. With regard to 

[C.S.], Father demonstrated no basis for his objections to the 

treatment plan of his son’s doctor; his objections were arbitrary. 

He did not seek a second opinion, merely demanded that nothing 

be done without his “consent.” It is imperative that this young 

man receive regular and monitored care and it was my 

determination that Father’s demands that nothing be done 

without his “consent” is not based on anything but his struggle 
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for power. This behavior was repeated regarding the younger 

boy’s dermatological treatment. 

Trial Court Opinion, 5/23/13, at 9 (unnumbered).3

Although we recognize that Father’s reliance on the holding in Hill is 

persuasive, we conclude that the Hill case is distinguishable from the 

present circumstances. In Hill, the “final decision-making power” awarded 

the mother covered every decision that could arise; it was not just limited to 

medical treatment decisions as is the situation here. The Hill court also 

noted that the trial court had not made on the record findings about the 

parents’ ability to at least minimally cooperate. Here, the trial court 

provided extensive findings on the lack of cooperation between Mother and 

Father, particularly as it related to the medical treatment of the Children, not 

just decisions in general. Therefore, we conclude that in light of the parties’ 

inability to cooperate, as found by the trial court, the limited exception to an 

equally shared custody arrangement, regarding the medical treatment of all 

three Children, is not an abuse of discretion. Hill does not control under 

these circumstances. 

Father’s sixth claim of error involves Pa.R.C.P. 1915.4, entitled 

“Prompt Disposition of Custody Cases,” which in pertinent part provides:

____________________________________________

3

Father also argues that Mother’s father, who is a physician, should not be 

treating the Children. Father did not raise this issue in his Pa.R.A.P. 1925(b) 

Statement of Matters Complained of on Appeal, therefore, we deem this 

issue waived. See Rule 1925(b)(4)(vii). 
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(c) Trial. Trials before a judge shall commence within 90 days 

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

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).

Father claims that this rule was violated because he had filed the 

custody action in July of 2010 and the final order was not entered until 

March of 2013, almost three years later. Father also states that the “review 

hearing” held in November of 2012 was unnecessary and was not completed 

until March of 2013. He sets forth an extensive discussion of the procedural 

history of this matter, and claims that Mother and the trial court were the 

cause of the various delays that prejudiced both him and the Children. 

We are compelled to conclude that this issue has been waived because 

it was not raised in the court below. See Pa.R.A.P. 302(a) (“Issues not 

raised in the lower court are waived and cannot be raised for the first time 

on appeal.”). See also Pa.R.A.P. 2117(c) (“issue is not reviewable on 

appeal unless raised or preserved below”); and Pa.R.A.P. 2119(e) (same). 

Furthermore, these rules require an appellant to identify where in the record 

the issue was raised below and Father has not done so.4 

____________________________________________

4 We also note that Father’s reliance on Pa.R.C.P. 1915.4(c) may be illadvised in that the relief to which he may have been entitled could have 

resulted in a dismissal of his custody complaint pursuant to Pa.R.A.P. 

1915.4(b). See Dietrich v. Dietrich, 923 A.2d 461 (Pa. Super. 2007). 

(Footnote Continued Next Page)
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In Father’s seventh issue, he appears to assert that the court did not 

consider all the evidence in arriving at its custody order. Specifically, he 

contends that at the November 19, 2012 hearing, “after only having heard 

Mother’s direct testimony and [half] of the [C]hildren’s testimony in camera, 

the trial judge, in response to [A.S.’s] request to decrease the time spent 

with her father, boldly declared to her: ‘I don’t think we are going to go up 

in time.’” Father’s brief at 51-52 (emphasis omitted). Based upon this 

single statement by the court, Father asserts that the court had “foreclosed 

further consideration of the issue, and that the remainder of the proceedings 

below were mere surplusage that need only be endured.” Id. at 52. 

Mother responds, pointing out that the court advised Father to provide 

evidence that supported his claim for shared custody. Rather than comply 

with the court’s request, Mother contends that “Father spent most of his 

time ... pointing out what he saw as Mother’s faults, rather than focusing on 

the needs and best interests of his [C]hildren.” Mother’s brief at 44 (quoting 

Trial Court Opinion, 5/23/13, at 4 (unnumbered)). Mother also relies on a 

statement in this Court’s memorandum issued in response to Father’s appeal 

from the divorce decree. Noting that Father requests relief from this Court 

upon remand by directing that a different judge be appointed (Father’s brief 

(Footnote Continued) _______________________

Additionally, this dismissal would not necessarily have brought about the 

reinstatement of the January 2012 order, which we recognize is Father’s 

goal. 
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at 60), Mother quotes a portion of this Court’s prior decision in [J.S.S.] v. 

[M.J.S.], No. 1214 WDA 2013, unpublished memorandum at 29, n.7 (Pa. 

Super. filed July 31, 2014), which addressed Father’s implication that the 

trial court was biased against him. Mirroring what was stated in that 

decision, we suggest that if Father believed the court was biased then he 

should have petitioned for recusal. Implying bias without petitioning for 

recusal will not overcome Father’s failure to present evidence supporting his 

claim for shared custody. Moreover, our review reveals that the court’s 

comment to A.S. appeared to be an attempt to comfort her and was not an 

indication that the court had pre-judged the final outcome. Thus, we 

conclude that Father’s seventh issue is without merit. 

In Father’s eighth issue, he contends that the trial court ignored Dr. 

Bernstein’s recommendations and the guidance of well-settled case law 

when it ordered a custody schedule separating the siblings. Father provides 

more than six pages of discussion, setting forth various incidents that he 

believes give support to A.S.’s feelings of alienation from him. Father also 

extensively discusses Dr. Bernstein’s opinion. However, Father does not 

explain that the schedule deviates by only two days per month, i.e., A.S. 

spends one less overnight with her Father every two weeks than her 

brothers do. 

In its opinion on remand, the trial court discussed this issue relating to 

Factor 6, listed in the Child Custody Act, 23 Pa.C.S. § 5328(a), stating:
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Since the children are together during most periods of custody 

and have no step-siblings, the considerations of Factor 6 

regarding sibling relationship are met equally. A.S. spends an 

extra day with her Mother when her brothers are in Father's 

custody, I disagree with Father's assessment, which is somewhat 

reinforced by Dr. Rosenblum's [sic] testimony, that this 

arrangement gives A.S. some feeling of power to which she is 

not entitled. To the contrary, I carefully considered her 

vehemently expressed desire to not be with her Father, and 

determined that allowing A.S. one less day with Father might 

reassure her that she had some nominal say in her life. Instead 

of being patient[,] allowing his child to adjust and attempting to 

mend his relationship with her, Father dug in his heels and 

focused on what he thought he was entitled to, rather than 

considering his child's best interests.

Trial Court Opinion, 3/6/14, at 4 (unnumbered). 

“[T]he policy in Pennsylvania is to permit siblings to be raised 

together, whenever possible (the doctrine of ‘family unity’ or ‘whole family 

doctrine’).” Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004). “Absent 

compelling reasons to separate siblings, they should be reared in the same 

household to permit the ‘continuity and stability necessary for a young 

child’s development.” Id. “However, this Court has made clear that the 

policy against separation of siblings is only one factor—and not a controlling 

factor—in the ultimate custody decision.” Id. Under the circumstances 

here, we conclude that the court did not abuse its discretion in ordering this 

slight deviation from having the Children all spend the exact same amount of 

time with Father, as he requests. Father’s argument does not convince us 

otherwise. 
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Father’s final issue concerns the court’s issuance of a no-contact order 

against him on December 18, 2012. He complains that the court had no 

authority to issue such an order and, therefore, it infringed on his 

“constitutional liberty interests in free speech and association without due 

process.” Father’s brief at 58-59. Father acknowledges that the order has 

since been vacated, but complains that he and the Children were subject to 

police involvement during the three-month period that the order remained in 

effect. Notably, Father does not explain what relief he seeks from this 

Court. 

Mother directs this Court’s attention to Deutsche Bank Nat. Co. v. 

Butler, 868 A.2d 574, 577 (Pa. Super. 2005), which provides that: 

“Generally, an actual claim or controversy must be present at all 

stages of the judicial process for the case to be actionable or 

reviewable.... If events occur to eliminate the claim or 

controversy at any stage in the process, the case becomes 

moot.” J.S. v. Whetzel, 860 A.2d 1112, 1118 (Pa. Super. 

2004) (quotation marks and citation omitted). “An issue can 

become moot during the pendency of an appeal due to an 

intervening change in the facts of the case or due to an 

intervening change in the applicable law.” In re Cain, 527 Pa. 

260, 590 A.2d 291, 292 (Pa. 1991). “An issue before a court is 

moot if in ruling upon the issue the court cannot enter an order 

that has any legal force or effect.” Rivera v. Pennsylvania 

Dept. of Corrections, 837 A.2d 525, 527 (Pa. Super. 2003).

In response to this issue, we rely on the trial court’s order dated March 

14, 2013, that states that “[a]ll prior custody Orders in this matter as well as 

any Orders concerning communications between the parties are hereby 

superseded in their entireties. Certain provisions of these previous orders 
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are incorporated herein; however, this Order is controlling.” Trial Court 

Order, 3/14/13, at ¶ 2. In light of the fact that the December 2012 order 

was vacated, we conclude that this issue is moot. We again conclude that 

Father is due no relief. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/20/2015