J-A03002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.P.T. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

J.L.T.

Appellant No. 1154 MDA 2016

Appeal from the Order Entered June 15, 2016

In the Court of Common Pleas of Cumberland County

Civil Division at No(s): 2011-07420

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 21, 2017

J.L.T. (Mother) appeals from the trial court’s order denying Mother’s 

request to reinstate a June 2012 parenting plan, putting a new parenting 

plan into place, and granting A.P.T. (Father) primary physical custody and 

Mother and Father shared legal custody of the parties’ minor daughter, 

D.K.T. (born 5/2003).1 After careful review, we affirm.2

The parties were married; they separated in January 2011. In July 

2011, Father filed a custody complaint against Mother seeking shared legal 

custody and partial physical custody of D.K.T. and her siblings. On 

____________________________________________

1

Parents have three children D.K.T., A.M. (born 1/2011), and L.P. (born 

9/2006). Mother has primary physical custody of L.P. and A.M. The instant 

appeal involves only D.K.T. 

2

Father has not filed a brief on appeal.
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December 13, 2011, Father was awarded partial physical custody and a 

visitation schedule was arranged. Father filed a contempt petition against 

Mother for failing to abide by the custody order. The court found Mother in 

contempt and sanctions were imposed against her. On June 8, 2012, the 

court entered a new custody granting Mother primary physical custody and 

Father partial custody; the parties retained shared legal custody. 

In July 2015, Mother filed a petition for special relief, requesting that 

Father’s visits with D.K.T. be supervised, claiming that D.K.T. has suffered 

sexual, mental and verbal abuse while in Father’s custody. Mother 

specifically averred that Father’s Stepfather (paternal Step-Grandfather) had 

sexually abused D.K.T. The petition was denied without a hearing and the 

court ordered conciliation for the parties. On August 6, 2015, the court 

appointed Grace D’Alo, Esquire, as Guardian Ad Litem (GAL) for D.K.T. 

On October 7, 2015, the Cumberland County Children and Youth 

Services (Agency) received a referral alleging that Mother had emotionally 

abused D.K.T. The court held a dependency hearing and a safety plan was 

developed which placed D.K.T. with her maternal grandparents. On October 

21, 2015, the court continued the safety plan, but permitted Father to have 

periods of partial physical custody.

On October 29, 2015, the GAL filed a report and proposed order 

recommending that primary physical custody be transferred to Father. On 

October 30, 2015, the court terminated dependency, granted Father primary 
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physical custody, and ordered that Mother continue to have no contact with 

D.K.T. unless agreed to by all parties. Father was also ordered to provide 

counseling or other therapy for D.K.T. Mother filed a motion for 

reconsideration, which was denied. On February 17, 2016, the court 

appointed a second GAL, Robert Hawn, Esquire, for D.K.T. when GAL D’Alo 

had to travel out of the country. 

The court held a two-day custody hearing in March 2016. At the 

hearing, Doctor Ashley Milspaw, an expert in clinical psychology, testified 

that she conducted a psychological evaluation of Mother and concluded that 

she “seems to be an adequate parent and [knows how to] appropriate[ly] 

parent[].” N.T. Custody Hearing, 3/2/16, at 11. Doctor Milspaw 

recommended that Mother engage in some outpatient psychotherapy to 

assist her with stress and anxiety she experienced associated with the 

current custody battle and to help her with her health issues. Id. Child’s 

maternal grandmother testified that while she was Child’s custodian, D.K.T. 

seemed withdrawn and anxious at times and would try to seclude herself 

from the rest of the family. Id. at 40. Grandmother also testified that she 

never saw Mother do anything that would have caused concern with regard 

to how she cared for her children. Id. at 43. Prior to living with Father, 

maternal grandmother testified that Child was actively involved in basketball 

and softball leagues, id. at 53, but since then had chosen not to play those 

sports and has taken up babysitting after school. Id. at 53-52.
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On April 7, 2016, the court held an evidentiary hearing where Father’s 

fiancée testified regarding her relationship with D.K.T., Father’s involvement 

with and parenting of D.K.T., and any interactions she had had with Mother. 

Fiancée is the parent to two girls, six years old and eighteen years old, 

whom she claimed have a sibling-like relationship with D.K.T.

Father testified that he is concerned that a lot of negative talk about 

him occurs when D.K.T. is at Mother’s home, coming from both Mother and 

Mother’s father (maternal grandfather). N.T. Custody Trial, 3/3/16, at 45, 

48. On June 1, 2016, Hawn issued a report recommending that Mother be 

awarded primary physical custody of D.K.T, with the following suggestions:

(1) D.K.T. promptly resume counseling sessions;

(2) D.K.T. actively reestablish herself in the community by 

engaging in sports, recreation, and social activities, as well 

as renewing friendships; and

(3) Mother undergo counseling to help her reconcile the failure 

of her marriage, resolve the issues with father, and move 

on with her life.

Guardian ad Litem Report, 6/1/16, at 18.3 In response to GAL Hawn’s 

report, GAL D’Alo issued an unsolicited report contradicting GAL Hawn’s 

recommendation that Mother be granted primary physical custody of D.K.T. 

Specifically, GAL D’Alo made the following observations:

 Mother does not understand D.K.T.’s need for Father;

____________________________________________

3 On July 23, 2016, GAL Hawn informed the court that he no longer 

represented any party in interest in the matter after the court entered its 

final custody order on June 15, 2016. 
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 Mother will denigrate Father if D.K.T. is returned to her 

care;

 Mother will continue to limit D.K.T.’s contact with Father; 

and

 Mother’s reactions are not in the best interest of D.K.T.

GAL D’Alo’s Response to Report by GAL Hawn, 6/8/16, at 2.

On June 15, 2016, the court entered the current custody order 

awarding Mother and Father shared legal custody, awarding Father primary 

physical custody and setting forth, in part, the following schedule:

 Mother has overnight physical custody of D.K.T. on the 

first and third weekends of even months; Father has 

overnight physical custody on the second weekend of even 

months;

 Father has overnight physical custody of D.K.T. on the first 

and third weekends of odd months; Mother has overnight 

physical custody on the second weekend of odd months;

 The parties shall attend co-parenting counseling at the 

request of either party;

 “Good night” phone calls shall be placed nightly to the 

non-custodial parent;

 Parents are encouraged to establish a mutually agreeable 

holiday custody schedule[.]

Trial Court Order, 6/15/16. After conducting its analysis of the sixteen 

section 5328(a) factors, the trial court set forth its reasons for fashioning the 

instant custody award as follows:

This Parenting Plan is strongly focused on [D.K.T.], her needs 

and best interest. This action was required by the ongoing 

drama at Mother’s house that culminated in this court reporting 

the neglect of this child to Cumberland County Children and 

Youth Services Agency. Mother is found to be duplicitous and 

insincere. She often over[-]corrects for problems she creates. 
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Mother is narcissistic, in that she seeks favorable treatment for 

herself, and automatic compliance[,] or else she will become 

exploitative. There are those who would describe Mother as a 

helicopter parent; however, truth be told there are times that 

she allows the children to be unsupervised as was demonstrated 

in the making and posting of the YouTube video. The fact that 

[D.K.T.] is thriving in her current household, in spite of all the 

tumult and uproar she has experienced this school year, is 

indicative that the prior court ruling was exactly what she 

needed and there is no reason to endanger her education any 

further. It is noted that the Guardian Ad Litem Hawn report 

believes a return to the June 2012 Parenting Plan would be in 

order and this report was duly considered. Indeed, the report 

makes several future recommendations about the best interest 

of [D.K.T.] including ongoing counseling which . . . per the last 

testimony is continuing; having Mother undergo counseling to 

help her reconcile the failed marriage, resolve her own father 

issues, and move on with her life; cut the every weekend travel 

for the chi[ld]ren; and also require Father to repay his student 

loans to assure children’s eligibility in the future. The 

circumstances that led the [c]ourt to this drastic midyear school 

change still exist[] and without the ability of each parent to 

develop the respective co-parenting skills necessary, a strict 

structure is all the court can provide. The flexibility that coparenting would provide to allow children to participate in 

extracurricular activities that occur on weekends when hey may 

be in [the] custodial time of another parent cannot be magically 

resolved by the [c]ourt. Only the parents have this ability, if 

they choose to use it, which heretofore they have not. Thus, in 

the best interest of D.K.T. . . . the above Parenting Plan has 

been established.

Trial Court Opinion, 6/15/16, at 13-14. Mother filed a timely notice of 

appeal and Pa.R.A.P. 1925(b) concise statement of matters complained of on 

appeal. The trial court filed a Rule 1925(a) opinion where it incorporated, by 

reference, the section 5328(a) custody factors set forth in its June 2016 

Parenting Plan/Custody Order. 

On appeal, Mother raises the following issues for our review:
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(1) Did the trial court abuse its discretion in its analysis of the 

factors under 23 Pa.C.S. § 5328(a) by reaching 

unreasonable conclusions not supported by the evidence 

presented during the custody hearings?

(2) Did the trial court abuse its discretion in its analysis of the 

factors under 23 Pa.C.S. § 5328(a) by failing to address 

the subject matter of multiple factors?

(3) Did the trial court abuse its discretion in its Reasons for 

Award by making inferences and deductions not supported 

by the evidence of record?

Appellant’ Brief, at 4.

The scope of review of an appellate court reviewing a child 

custody order is of the broadest type; the appellate court is not 

bound by the deductions or inferences made by the trial court 

from its findings of fact, nor must the reviewing court accept a 

finding that has no competent evidence to support it. . . . 

However, this broad scope of review does not vest in the 

reviewing court the duty or the privilege of making its own 

independent determination. . . . Thus, an appellate court is 

empowered to determine whether the trial court’s 

incontrovertible factual findings support its factual conclusions, 

but it may not interfere with those conclusions unless they are 

unreasonable in view of the trial court’s factual findings; and 

thus, represent a gross abuse of discretion.

Kaneski v. Kaneski, 604 A.2d 1075 (Pa. Super. 1992) (citing McMillen v. 

McMillen, 602 A.2d 845 (Pa. 1992)). In addition, with regard to issues of 

credibility and weight of the evidence, we must defer to the presiding judge 

who viewed and assessed the witnesses first-hand. C.R.F. v. S.E.F., 45 

A.3d 441, 443 (Pa. Super. 2012) (citation omitted). Moreover, the primary 

concern in any custody case is the best interests of the child. 

Beginning on January 24, 2011, new legislation prescribed a number 

of factors that a trial court must consider discretely in entering or modifying 

a custody order. M.E.V. v. F.P.W., 100 A.3d 670, 671 (Pa. Super. 2014). 
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Those factors are enumerated in 23 Pa.C.S. § 5328(a). “Notably, this Court 

has held that it is not sufficient that the trial court merely state its reasoning 

on the record in open court or conclusorily assert that it has considered the 

enumerated factors in reaching its disposition.” Id. at 672. Rather,

[t]he Act requires a court to consider all of the § 5328(a) best 

interest factors when "ordering any form of custody.” 23 Pa.C.S. 

§ 5328(a) . . . [Subs]ections 5323(a) and (d) reinforce this 

mandate by requiring a court to delineate the reasons for its 

decision when making an award of custody either on the record 

or in a written opinion. Mere recitation of the statute and 

consideration of the § 5328(a) factors en masse is insufficient. 

C.B. v. J.B., 2013 PA Super 92, 65 A.3d 946, 950 (Pa. Super. 

2013). A trial court's failure to place its reasoning regarding the 

§ 5328(a) factors on the record or in a written opinion is an error 

of law. J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647, 652 

(Pa. Super. 2011). Accordingly, in C.B., when the trial court 

merely stated that it had considered the § 5328(a) factors, we 

held that the trial court's on-the-record explanation was 

insufficient under the statute. 65 A.3d at 950-51. Similarly, in 

M.P. v. M.P., [2012 PA Super 215, 54 A.3d 950, 955-56 (Pa. 

Super. 2012),] we found error where the trial court listed the § 

5328(a) factors but failed to apply them[.]

Id., citing S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014).

On appeal, Mother’s claims boil down to one basic contention that the 

court abused its discretion in coming to its custody determination. 

Specifically, Mother contends that the court’s conclusions were unreasonable 

and unsupported by the record and that the court failed to consider several 

statutory factors under section 23 Pa.C.S. § 5328(a). Mother asserts that 

had the court properly considered the evidence of record, it would have 

concluded that the best interests of D.K.T. would be served by awarding 

Mother primary physical custody.
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We recognize that the trial court’s analysis of subsections 5328(a)(5) 

(availability of extended family), (7) (preference of children), and (9) (which 

parent more likely to attend to physical, emotional, developmental, 

educational and special needs of child) as it applies to D.K.T. is scant or 

lacking in depth. Specifically, when analyzing section (a)(5) the court does 

not mention Mother’s large extended family, all of whom live close by to her 

and some of whom acted as D.K.T.’s caregivers when D.K.T. was declared 

dependent. In addition, we recognize that the trial court fails to mention 

D.K.T. at all, instead only discussing her brother, in its section 5328 analysis 

of factor (a)(9), a critical component regarding the well-being of a child. 

Finally, with regard to factor (a)(7), the court seems to rely upon “nonverbal cues indicat[ing] that [D.K.T.] is thriving within Father’s household,” 

to determine D.K.T.’s “well-reasoned” preference. However, not only is this 

determination not explained or supported by specific evidence in the record, 

it also fails to acknowledge that GAL Hawn noted in his report, only days 

before the instant custody order was entered, that “D.K.T. lacked sufficient 

maturity to express a well-reasoned preference and that D.K.T.’s preference 

has in fact changed from Father to Mother.” GAL Report, 6/1/16, at 11-12, 

16. 

However, after reviewing the entire record including all GAL reports, 

pleadings, petitions, orders, custody trial notes and professional opinions 

regarding the parties’ mental and psychological states, we cannot conclude 

that the trial court’s conclusions are unreasonable. Cf. M.E.V. v. F.P.W., 
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100 A.3d at 681 (trial court may not merely rely upon conclusory assertions 

regarding consideration of section 5328(a) factors in entering an custody 

order); C.A.J. v. D.S.M., 136 A.3d 504 (Pa. Super. 2016) (where trial court 

only considered half of statutorily mandated custody factors in fashioning its 

order, order vacated and case remanded for preparation of opinion and 

order specifically addressing all section 5328(a) factors). As an appellate 

court we are mindful that our role does not include making independent 

factual determinations. In re C.R.F., 45 A.3d 441, 443 (Pa. Super. 2012). 

We are also cognizant of the fact that while the result of custody 

proceedings no doubt has a “lasting impact on the lives of the parties 

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

upon petition, a trial court can modify a custody order to serve the best 

interest of the child. 

In C.W. v. K.A.W., 774 A.2d 745 (Pa. Super. 2001), our Court 

recognized the role of a guardian ad litem in custody matters, noting

A guardian ad litem is appointed by the court to represent a 

minor child in particular litigation. The function of the guardian 

is to represent and protect unrepresented minors and their 

interests. [citation omitted] A guardian ad litem is not a judicial 

or quasi-judicial officer. 

* * *

In a non-jury trial such as this, the role of the judge is to 

interpret the law, determine the facts and apply the facts to the 

law for an eventual decision of the controversy. The trial court 

may not delegate its judicial powers [to the guardian ad litem].
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Id. at 748-49. Here, we are confident that although the two GALs provided 

opposing recommendations with regard to the award of primary physical 

custody, the court made an independent determination regarding what was 

in D.K.T.’s best interests after observing the proceedings in the matter, 

assessing the credibility of the many witnesses, and weighing the requisite 

factors under section 5328. C.R.F., supra; 23 Pa.C.S. 5328 (“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[.]”); M.J.M. v. M.L.G., 3 A.3d 

331, 336 (Pa. Super. 2013 (“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.”). Under such circumstances we are obligated to affirm the 

court as its order is neither manifestly unreasonable nor a gross abuse of 

discretion.
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Order affirmed.

Judge Dubow joins this Memorandum.

Judge Stabile notes his dissent. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2017