J-A19032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

T.C.M., :

:

Appellant : No. 745 EDA 2017

Appeal from the Order entered January 26, 2017

in the Court of Common Pleas of Montgomery County,

Civil Division, No(s): 2016-09945

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 21, 2017

T.C.M. (“Father”) appeals from the Order (hereinafter, “the Custody 

Order”) granting J.M. (“Mother”) primary physical custody, and shared legal 

custody, of K.M. (born in November 2000), A.M. (born in August 2003), and 

L.M. (born in October 2006) (collectively, “the Children”), and granting Father 

partial physical custody and shared legal custody.1 We affirm. 

The trial court summarized the relevant factual and procedural history 

of this appeal, which we incorporate as though fully set forth herein. See 

Trial Court Findings of Fact, 1/26/17, at 1-4.

The trial court entered the Custody Order on January 26, 2017. On the 

same date, the court issued its Findings of Fact, wherein it addressed the 

seventeen custody factors (hereinafter, “the best interest factors”) set forth in 

 

1 The Custody Order provided that, during the Children’s summer vacation 

from school, Father and Mother shall have shared physical custody.
J-A19032-17

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subsection 5328(a) of the Child Custody Act (“the Act”). See 23 Pa.C.S.A. 

§ 5328(a). 

Father timely filed a Notice of Appeal, followed by a court-ordered 

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of 

errors complained of on appeal, presenting eighteen separate issues. The 

trial court then issued a Pa.R.A.P. 1925(a) Opinion (hereinafter, the “Rule 

1925(a) Opinion”).

Father now presents the following questions for our review:

A. Whether the [trial] court abused its discretion and committed 

an error of law in weighing the [best interest] factors by 

granting [] Mother primary custody of the Children?

B. Whether the [trial] court properly applied the [best interest] 

factors in analyzing the best interests of the Children?

C. Whether the [trial] court abused its discretion and committed

an error of law in denying [] Father the opportunity to 

participate in the Children’s daily lives?

D. Whether the [trial] court deviated from applicable standards 

in establishing a schedule of when [] Father would be able to 

have physical custody of the Children individually and 

together?

Father’s Brief at 5-6 (issues renumbered for ease of disposition, capitalization 

omitted).

“We review [a] trial court’s custody order for an abuse of discretion.” 

M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017). In conducting this 

review,

[t]he appellate court is not bound by the deductions or inferences 

made by the trial court from its findings of fact, nor must the 
J-A19032-17

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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.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and 

brackets omitted). This Court has further explained that 

[o]n issues of credibility and weight of the evidence, we defer to 

the findings of the trial court[,] who has had the opportunity to 

observe the proceedings and demeanor of the witnesses. The

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. The test is whether the evidence of 

record supports the trial court’s conclusions. 

Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v. 

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

In any custody case, the primary concern is the best interests of the 

child. See 23 Pa.C.S.A. §§ 5328, 5338; see also M.G., 155 A.3d at 1091. 

In assessing the child’s best interest, the trial court must consider the best 

interest factors, enumerated at subsection 5328(a) as follows:
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(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) 

(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.

(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, education and special 

needs of the child.
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(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. “All of the [best interest] factors ... are required to be 

considered by the trial court when entering a custody order.” J.R.M. v. 

J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted).

Subsection 5323(d) of the Act mandates that, when the trial court 

awards custody, it “shall delineate the reasons for its decision on the record in 

open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). “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 

[best interest] factors are considered and that the custody decision is based 

on those considerations.” A.V., 87 A.3d at 823 (citation and quotation marks 

omitted); see also id. (stating that “[a] court’s explanation of reasons for its 
J-A19032-17

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decision, which adequately addresses the relevant factors, complies with 

Section 5323(d).”).

Here, we will address Father’s first three issues together, as they are 

closely related, and all essentially challenge the trial court’s weighing of the 

best interest factors. 

In his first issue, Father contends that the trial court “erred in making 

factual findings that suggested that both Mother and Father were capable of 

[exercising] primary physical custody, but then granted [primary] physical 

custody to [] Mother.” Father’s Brief at 16. Father additionally argues that 

“[t]he [trial] court’s findings of fact[] are not reasoned, and instead, make 

prejudicial statements in favor of [] Mother, such as ‘Mother worked as the 

CEO of the family.’ The [trial] court frowned upon [] Father being a surgeon 

and physician.” Id. at 17-18 (quoting Trial Court Findings of Fact, 1/26/17, 

at 9).

In his second issue, Father asserts that the trial court improperly 

applied the best interest factors in analyzing the best interests of the 

Children. Father’s Brief at 18. Father urges that “[t]here is no dispute that 

[he] is able, available and wanted to have physical custody of the Children[, 

yet he] ... was only entitled to one overnight per week with all three Children 

at the same time.” Id. at 21; see also id. at 22, 23 (asserting that such 

custody schedule causes disruption in Father’s relationship with the Children 

and “separation among the Children”). Father additionally argues that the 
J-A19032-17

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trial court overlooked that (1) Mother made disparaging comments to the 

Children concerning, inter alia, Father’s alleged alcohol abuse; (2) in 

contradiction of Mother’s claim that Father is an alcoholic, Father submitted 

an “expert report” opining that Father “had a low probability of having an 

alcohol [] abuse” issue; and (3) paternal grandmother had often helped 

Mother care for the Children. Id. at 22, 23; see also id. at 22 (asserting 

that Mother’s testimony at the custody hearing was not credible).

In his third issue, Father argues that the trial court improperly denied 

him the opportunity to participate in the Children’s daily lives. Id. at 30. 

According to Father,

[t]here is no evidence in the record that [he] did not participate in 

the Children’s daily well-being. The [trial] court stated in its [Rule 

1925(a)] [O]pinion that the “majority of the household duties had 

always been, and currently were still, performed by Mother.” 

“Household duties” is not a statutory factor in awarding primary 

physical custody. Such an arbitrary statement punishes [] Father 

for being a physician and surgeon.

 * * *

Moreover, if [] Father is able to maintain fifty percent [physical] 

custody during the summer, when there are still household chores 

to be done and [] Father still works, it is unreasonable to suggest 

that the factors must change during the school year.

Id. at 32-33 (citations omitted). Father further points out that the trial court 

found that “Father is also an involved, loving, doting parent[,] who attends to 

the[] [Children’s] activities, participates in school programs and always 

makes time to engage with the [C]hildren.” Id. at 34 (quoting Rule 1925(a) 

Opinion, 3/31/17, at 15). Father contends that this finding “contradicts” the 
J-A19032-17

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trial court’s awarding primary physical custody to Mother. Father’s Brief at 

34.

In its Findings of Fact, the trial court thoroughly addressed all of the 

best interest factors, and determined that it was in the Children’s best 

interests to award Mother primary physical custody during the school year. 

See Trial Court Findings of Fact, 1/26/17, at 4-12. Additionally, the court 

addressed Father’s above-described claims in its Rule 1925(a) Opinion, 

adeptly summarized the relevant law, and determined that the court did not 

abuse its discretion in weighing the best interest factors, or in awarding 

Mother primary physical custody during the school year. See Rule 1925(a) 

Opinion, 3/31/17, at 6-9, 14-17. As the trial court’s analysis is sound, and 

the record supports its factual findings, we incorporate it herein by reference. 

See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court Findings of 

Fact, 1/26/17, at 4-12. Like the trial court, we decline Father’s invitation to 

disturb the court’s findings and weighing of the evidence, in favor of the 

findings and custody arrangement that Father proposes. See M.J.M. v. 

M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting appellant/mother’s 

argument asking this Court to reconsider the trial court’s findings and 

credibility determinations with regard to the best interest factors); see also 

A.V., supra (stating that a reviewing court should defer to the trial court on 

issues of credibility and weight of the evidence). Accordingly, as the trial 

court’s sound analysis of the best interest factors was careful and thorough, 
J-A19032-17

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and we discern no abuse of the court’s discretion in fashioning a reasonable 

award of physical custody that was in the Children’s best interests, we defer 

to the court’s decision. See A.V., supra (stating that “[a]ppellate 

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.”); see also id., supra, (stating that a reviewing court 

may not interfere with a trial court’s conclusions where they are reasonable in 

view of the trial court’s factual findings). We thus affirm on the basis of the 

trial court’s Rule 1925(a) Opinion and Findings of Fact as to Father’s first 

three issues. See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court 

Findings of Fact, 1/26/17, at 4-12. 

In his final issue, Father argues that the trial court rendered an 

“arbitrary” physical custody award, which “was in deviation of the statutory 

guideline and not in the Children’s best interests[,]” where “Father only has 

[all] three Children together four times a month over a ten month period, 

even though [Father] lives near [] Mother, closer to [the Children’s] school, 

[and] on the bus route ....” Father’s Brief at 25-26. Father urges that 

[t]he better solution to meet the Children’s best interests was ... 

[to award the parties] shared physical custody[, and] ... a more 

balanced schedule[,] where all three Children could stay with [] 

Father together more than four nights per month during the 

school year, [which is] ... a disproportionate [and] unjustified 

holding. ... The arbitrary decision of the [trial] court does not 

reflect the reasoning as to why [] Father can have the Children

together 4 nights [per month] during ten months out of the year, 

and fifteen nights [per month] for two summer months.
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Id. at 29.

In its Rule 1925(a) Opinion, the trial court explained that it (1) had 

considered the Children’s “articulate and well reasoned” desires for a physical 

custody schedule that was best suited to their respective individual needs; 

and (2) was cognizant that the court had fashioned an unconventional 

custody schedule, whereby the Children were not always together during 

Father’s custodial time, and each had a slightly different schedule. See Rule 

1925(a) Opinion, 3/31/17, at 10-11. The court determined that, 

nevertheless, it was appropriate, and in the Children’s respective best 

interests, to employ a physical custody schedule that the Children expressed 

they prefer, even though it does not ensure that the Children are all together 

at all times. Id. The trial court’s reasoning is sound and supported by the 

record, and we discern no abuse of the court’s discretion in finding that the 

unconventional physical custody schedule put into place was in the Children’s 

best interests.2 Accordingly, we affirm on this basis in rejecting Father’s final 

issue. See id.

Order affirmed.

 

2 Our determination is unaltered by Father’s pointing out that that he was 

awarded shared physical custody during the Children’s summer vacation, but 

not during the remainder of the year. The trial court found that such 

arrangement was the one best suited to the Children’s best interests, and 

their expressed preferences. See Rule 1925(a) Opinion, 3/31/17, at 8-9 

(stating, inter alia, that “the [C]hildren have a very strong preference towards 

spending more time in Mother’s household during the school year in order to 

provide them with consistency and stability, especially in their academic 

pursuits.”); see also id. at 10-11. Contrary to Father’s assertion, this 

physical custody arrangement is neither arbitrary nor unreasonable.
J-A19032-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2017
, l 

d' 

THIS DOCUMENT WAS DOCKETED AND SENT ON 01/26/2017 

1111 ~l·~·~~-1111 

2016-09945-0042 1/26/2017 3:31 PM # 11139064 

Order 

Rqn#Z3020533 F<!~:S0.00 

Mark L<!\'Y - MontCo Prothonotary 

Page 1 of 13 

On October 9, 2015, the parents separated and Father moved out of the 

marital residence, located at - Royal Oak Drive, Blue Bell, PA 19422. 

Mother and the three children have lived primarily at the martial residence 

since that date. After Father moved out of the marital residence, the parties 

jointly decided that Father would have custody of the children on Monday 

afternoons and Thursday afternoons and every Friday after school, overnight to 

Saturday between 3:00 p.m. and 7:00 p.m. This arrangement was constructed 

based on what the parties felt was in the best' interests of each of the children 

and was extremely flexible to take the children's extra-curricular activities and 

school work into consideration. On many occasions, one or more of the 

children did not go with Father because of schoolw?_rk or oth~r_ activities. 

J-M-("Mother") and T.C. M-("Father.") are the 

parents of three minor childr:en: K- M- (date of birth: November. 

2000, age 16), A- M- (date of birth: Augustll 2003, age 12) and 

L.<9111111 [date of birth: October" 2006, age 10). 

I. History of the Case 

FINDINGS OF FACT 

Seq. 9 (5/24/ 16) Plaintiff's 

Answer and New Matter' 

·vs. 

Seq. 8 (5/20/ 16) Defendant's 

Emergency Petition for Custody 

J-M :NO. 2016-09945 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, 

PENNSYLVANIA 

FAMILY DIVISION 

2016-09945-0042 Order, Page 1 

Circulated 08/03/2017 04:05 PM
Page 2 of 13 

On May 24, 2016, Mother. filed an Answer and New Matter to Father's 

Emergency Petition in which I she requested that Father be directed to undergo 

hair follicle testing, participkte in an alcohol assessment and that Father's 

. . I . 

overnight custody with the children be suspended until further order of Court 

or Agreement of the parties. J 

= I r · h 1 · · On May 25, 2016, after a phone conrerence wit counse in connection 

with Father's Emergency Petition, the Honorable Risa Vetri Ferman entered an 

I 

On May 20, 2016, Father filed an Emergency Petition for Custody 

seeking (1) shared legal custody of the children; (2) shared physical custody of 

the children as set forth in his proposed order; (3) a nesting arrangement 

whereby Mother has custody of the children during the week and Father has 

custody of the children'on the weekends, with the non-custodial parent moving 

out of the marital residence when he or she does not have custody of the 

children; (4) Father having custody of the children every Monday after school 

until 8:00 p.m. during the school year and during the summer, from 1 :30 p.m. 

overnight to 12:00 p.m. the following Tuesday; (5) Father having physical 

custody of the children every Thursday from 3:00 p.m. to 8:30 p.m.; and (6) 

shared holidays and vacations. 

Among the issues that led to the parties' separation was Father's use of 

alcohol and its impact on Mother and the family. On April 30, 2016, at 

approximately 11 :00 p.m., Father was involved in a two-vehicle car accident in 

Montgomery County. As a result, Father· was charged with Driving Under the 

Influence and related traffic offenses. 

When he first moved out, Father rented a three bedroom townhouse 

located at. Wick Lane, Blue Bell, PA 19422. In October 2016, he purchased 

and moved into a home at II Amour Circle, Blue Bell, PA 19422. On May 18, 

· 2016, _Mother filed a Complaint in Divorce, which included a Custody Count in 

in which Mother sought primary custody of the children. 

2016-09945-0042 Order, Page 2 
Page 3 of 13 

On October 11, 2016, the undersigned held a short list conference m 

connection with Father.'s Emergency· Petition for Custody and Mother's Answer 

and New Matter. After the short list conference, the Court entered an Order 

directing the parties to attend co-parent counseling and for the ·children to 

Since the beginning of the· 2016-2017 school year, the Court's May 25, 

2016 Order has been in effect. However, Mother has agreed that Father shall 

also have custody of their son Lii overnight on Mondays. 

On August 16, 2016, Custody Conciliator Sara Goren interviewed the 

three children and thereafter on August 19, 2016' she issued a Conciliation 

Report. 

On June 16, 2016, after conciliation, the parties entered into an Agreed 

Custody. Order regarding custody of their children for the summer of 2016. It 

provided that ( 1) Mother had primary custody of the children; (2) during the 

summer Father had physical custody from Thursday at 1 :00 p.m. until 

Saturday at 4:00 p.m. and overnight on every other Monday, beginning July 

11, 2016 and on interim Mondays from 1 :00 p.m. until 9:00 p.m.; (3) neither 

par.ent shall consume alcohol during his/her custodial time; (4) the parties 

shall participate in co-parent counseling; (5) the children shall attend Sunday 

. . 

services · at Fairview Village; and (6) directing that 'the children shall be 

interviewed in August. 

. . 

children unless mutually agreed upon by the parties; (4) an expedited custody 

. . 

conciliation shall be scheduled; and (5) incorporating the general rules of 

conduct. 

Interim Custody Order which provided that (1) the parties shall comply with 

the oral custody agreement in place since October 2015; (2) Father shall 

undergo a drug and alcohol evaluation and a hair follicle test, the results of 

which shall be provided to Mother's counsel; (3) Father shall not drive with the 

2016-09945-0042 Order, Page 3 
Page 4 of 13 

This factor favors Mother. 

' The Court finds: that Mother is more likely to encourage and permit 

frequent and continuing contact between the children and Father, as she has 

demonstrated consistently since the parties' separation. When the parties first 

separated, they established a schedule by agreement, but have been flexible 

since that time. Mother maintains the children's schedules and ensures that 

Father is aware of their events so he may attend and participate. Mother has 

routinely agreed to expand Father's time with the children beyond that which 

was previously agreed. 

(1) Which party is more likely to encourage and permit frequent and 

continuing contact between the child and another party. 

In ordering any form of custody, the Court shall determine the best 

interests of the children by considering all relevant information pursuant to the 

Custody Factors set forth in 23 Pa. C.S.A. § 5328 (a), giving weighted 

consideration to those factors which affect the safety of the children. The 

Court's analysis of those factors is detailed below: 

II. Custody Factors 

After the hearing concluded, the Court gave the parties until January 20, 

2017 to submit any post-trial memoranda and proposed orders. In addition, 

the Court permitted Father, by agreement of counsel, to submit a confidential 

document. Thereafter, Mother's counsel submitted a proposed order and 

Father's counsel submitted both the confidential document along with a letter 

to the Court, which included extensive ex-parte argument. Mother's counsel 

correctly objected to the inappropriate nature of the letter. The Court has not 

considered the substance of Father's letter in any manner. 

participate in family counseling. The Court held a protracted hearing on 

January 6, 2017. 

2016-09945-0042 Order, Page 4 
Page 5 of 13 

The Court firids that Mother can provide better stability and continuity in 

the children's education, family life and community life. Mother has been the 

(4) The need for stability and continuity in the child's education, family 

life and community life. 

This factor is neutral. 

Since .the parties' separation, when the children are with Father he has 

been fully capable of performing all required parental duties. Father is 

extremely loving and engaged in the lives of his children. Despite his schedule 

and the. obvious demands of his professional life, Father makes sure he is 

available for his children during his custodial time and during their activities. 

Father makes the children a priority in his life. The children love him and 

cherish their time together. Mother still maintains her role as the organizer and 

coordinator of all activities and the children rely on her to maintain the 

consistency of their home lives. 

Mother has been the primary caregiver of the children and the 

administrator of the household ·since they were born. Mother gave up her 

career as a high school English teacher at Lower Merion High School to be the 

children's full-time caregiver. Even on nights when the children are with their 

Father, Mother continues to transport the children to and/or from some of 

their activities. 

(3) The parental duties performed by each party on behalf of the child. 

There is no evidence that either party has ever abused the children, thus 

this factor is neutral. 

(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 for the child. 

2016-09945-0042 Order, Page 5 
Page 6 of 13 

. The Court interviewed all three children separately. The interviews were 

conducted in camera and on the record. Both parents agreed to waive their 

counsel's presence for the interviews. 

(7) The well-reasoned preference of the child, based on the child's 

maturity and judgment. 

This factor is neutral. 

The children have a close and good relationship. They enjoy spending 

time together, but also look forward to the time they can each have alone with 

their parents. 

(6) The child's sibling relationships. 

This factor is neutral. . 

Mother's parents live 25 minutes from the marital residence and are 

available to help Mother when she needs it. Father's parents are one hour and 

15 minutes away and they also have committed to being available if they are 

needed. 

(5) The availability of extended family. 

This factor favors· Mother. 

children's primary caretaker for their entire lives. She is the parent the 

children turn to when they have issues with school or friends. She is involved 

in their school and their church. She makes sure their homework is completed 

and they get to their extracurricular activities'. She also handles all of their 

school paperwork, and schedules and takes them to all of their 

medical/ dental/ orthodontia appointments. Mother has been and will be the 

stable presence in the children's lives. The Court finds that the children rely on 

Mother to ensure this stability. 

2016-09945-0042 Order, Page 6 
Page 7 of 13 

At the custody conciliation conference, both girls expressed a clear 

preference to stay at Mother's home during the school week. Often their 

The oldest child, daughter K- (16), requires the rnost flexibility 

because she is involved with the most activities. She has appreciated the way 

her parents have given her the space to complete her work and activities 

without pushing her. 

The middle child, daughter A- (12), enjoys spending evenings with 

Father and her siblings, but also feels the need to return to Mother's home to 

complete her school _work. Both girls enjoy having Mother/ daughter ti~e alone 

when Lii i~ with Father. 

The youngest child, son Lii (10), enjoys spending one on one time with 

his Father, which he gets .during his Monday overnights without his sisters. 

This is important Father/ son bonding time that he needs. 

The Court finds that current custody schedule, though unconventional 

m the .marmer in that each child has a slightly different schedule, is the 

schedule that the children currently ·prefer and that this Court finds meets the 

best interests of each child individually. The Court credits the parents' 

willingness to create a schedule that is clearly not in either parent's best 

interests, but instead best suits the needs of each child .. 

All three children presented as thoughtful, kind, mature and 

compassionate individuals. Each of them was intelligent, articulate and well 

reasoned in their thinking and possessed a clear ability to articulate their 

thoughts and wishes. Each of the children demonstrated good judgment and 

good sense in explaining their preferences to the Court. The Court gives 

significant weight to the preferences expressed by the children because their 

opinions each reflected an understanding of what best suited their personal 

needs without bias towards or against either parent. It was clear to the Court 

that the. children love both of their parents. 

2016-09945-0042 Order, Page 7 
Page 8 of 13 

This factor is neutral. 

Both parents are clearly .loving and nurturing with their children. The 

girls currently rely more on their Mother for emotional support, as one might 

expect with teenage girls. 

(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. 

This factor is neutral. 

Both parents have, unfortunately, engaged in· speaking negatively to the 

children about the: other parent. This disparaging conduct is inappropriate by 

both parents. The children are mature and perceptive enough that this conduct 

has not turned them away from either parent. The children, instead, love both 

. . 

of their parents and wish they were not put in the middle. The Court finds that 

the parents' conduct is not intended to turn any of the children away from the 

other parent; rather, each parent has tried to elevate him/herself in the 

children's eyes. The children have proven, to date, to be astute enough not to 

fall into ·this trap. They each recognize the important role each parent has in 

their lives. 

(8) The:attempts of a parent: to tum the.child against the other parent, 

except in cases of domestic violence where ·reasonable safety measures 

are necessary to protect the child from harm. 

This factor does not weigh in favor of either parent, but rather weighs in 

favor of maintaining the carefully crafted, though unconventional, schedule 

that is currently in place, which satisfies the best interests of each child. 

preference is to stay at Mother's on Mondays and Thursdays so they can get 

their schoolwork done. 

2016-09945-0042 Order, Page 8 
Mother is not currently employed and is available to provide any care 

needed, for .the children. Father is , a practicing physician with a thriving 

practice who works long hours. Father does have support from his parents who 

live over an hour away. Mother has consistently provided backup care for 

Page 9 of 13 

(12) Each party's availability to care for the child or ability to make 

appropriate child-care arrangements. 

This factor is neutral. 

The parties reside several miles away from one another in Blue Bell. They 

both reside in the. same school district and the children can take the school 

bus to either parent's home.· 

( 11) The proximity of the residences of the parties. 

' This factor weighs in Mother's favor. 

the children. She coordinates all their activities, their required appointments, 

helps them stay organized and balance in the various school work, 

extracurricular, social and medical commitments they have. Mother ensures 

that all · their schoolwork is done and that home/ school communication is 

maintained. The children are all emotionally close to their Mother and rely on 

her to maintain this sense of daily consistency. Father is also an involved, 

loving, · doting parent. He attends their activities, participates in school 

p~ograms and always makes time to engage with the children. 

While .Father worked as a physician, Mother worked as the CEO of the 

family. Mother has been the primary-caretaker of the children and is the parent 

most likely to attend to the daily physical, emotional, developmental, 

· educational and special needs of the· children. Mother has been the parent to 

ensure that the needs of each child have been met, and provides stability for 

(10) Which party is more likely to attend to the daily physical, 

emotional, developmental, educational and special needs of the child. 

2016-09945-0042 Order, Page 9 
Page 10 of 13 

This factor is neutral. 

Notwithstanding this issue, the Court finds there is not a high level of 

conflict between the parties. The Court appreciated Mother's honest 

assessment of Father's strengths and her own weaknesses as a parent. Both 

parents have been willing and able to work together and cooperate in relation 

to issues surrounding the children. 

The primary source of conflict between the parties·, as presented to this 

Court, has been Mother's concern for the children's safety considering her 

experience with Father's alcohol use during the marriage and the children's 

occasional exposure to it. The oldest child has been impacted by Father's past 

use of alcohol. Because of her exposure to Father's alcohol use and her status 

as a beginning driver, Mother has cautioned her to be aware of signs of any 

adult drinking and driving and has empowered her not to risk her own safety 

by- getting in a car with someone who has consumed alcohol. On its face, it 

might appear that this admonition could foster conflict between Father and 

daughter, but the Court finds it was an unfortunately necessary, but 

appropriate, caution to offer to a teenager who is a new driver and has been 

exposed ·to alcohol use/ abuse. The safety of this teen driver is paramount. 

(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. 

This factor weighs in Mother's favor. 

Father as well when his work schedule prevented him from attending to 

something the children needed. 

2016-09945-0042 Order, Page 10 
Page 11 of 13 

Father underwent an assessment with Spring-Ford Counseling Services 

in May 2016. The evaluator, Jennifer Gehret, M.S. recommended, "counseling 

sessions to address positive coping skills for life stressors and the effects of 

alcohol should be addressed. This counseling may occur with current therapist 

who Mr. (Dr.) M-is seeing for support during his separation or with a 

counselor who focuses on alcohol intervention services." To date, Father has 

( 15) The mental and. physical condition of a party or member of a party's 

household. 

This factor weighs in Mother's favor. 

The Court further finds that Father presented credible testimony 

indicating his cessation of all alcohol consumption since the event that led to 

his arrest in the spring on 2016. Although Father failed to submit to hair 

follicle alcohol testing until ordered by the Court, he exceeded the Court's 

ordered requirements and submitted test resuits indicating he has not 

consumed alcohol since his arrest. The Court finds that Father has, in fact, 

ceased alcohol consumption. 

Mother testified credibly about Father's use and abuse of alcohol· during 

the marriage and the way it impacted the family. She described a number of 

alcohol related events including a citation for public drunkenness and a 2016 

DUI charge. Mother described her credible observations of Father's history of 

binge drinking and poor decision-making. She described his history of drinking 

too much, apologizing, ceasing alcohol consumption for a brief period, and then 

the cycle repeating itself. The parties' oldest child has been exposed to Father's 

behavior under the influence of alcohol, which has impacted the level of trust 

in her relationship with her Father. 

( 14) The history of drug or alcohol abuse of a party or member of a 

party's household. 

2016-09945-0042 Order, Page 11 
Page 12 of 13 

In conclusion, the Court finds that the best interests of the three 

children will be met by awarding Mother primary physical custody and Father 

a: significant schedule of partial physical custody which can be expanded in the 

summer months. Mother's role in providing stability and consistency, 

especially during the· sch~ol year, will best serve the children's needs. The 

Court further finds that the schedule the parents adopted by agreement is 

serving the children exceedingly well and should continue. The current 

schedule is tailored to · meet the individual needs of each child and has been 

effective. 

The Court ordered both parties to commence co-parenting counseling to 

address their communication challenge in October 2016. The Court is 

disappointed in both parties that this has not yet occurred. 

record. Accordingly, the Court makes a negative inference that if evidence had 

been presented it would have weighed against Father. Accordingly, this factor 

weighs in Mother's favor. 

The Court heard no testimony about the facts of Father's current, open 

Driving under the ·influence of 'alcohol charge. As a result, the Court cannot 

ascertain whether there is a risk of danger to the children based upon the 

(16) Any other relevant factor(s). 

This factor weighs in favor of Mother. 

not complied with this recommendation. There was no evidence presented to 

the Court about Mother's mental or physical condition. 

2016-09945-0042 Order, Page 12 
Page 13 of 13 

' 

Copies to: j-c;).5'-17 

Plaintiffs Attorney: Cheryl L. Young, Esq. 

Defendant's Attorney: Andrew Smith, Esq. 

Chambers 

Court Administration - Family Division 

Custody· Conciliation 

A Custody Order will be entered separately on this date. These Findings 

of Fact and the Custody Order shall resolve all outstanding petitions between 

the parties. 

2016-09945-0042 Order, Page 13 
I The Final Custody Order was signed January 25, 2017 and filed January 26, 2017. It can be 

found.at docketing sequence forty-one (41). The Findings of Fact were filed January 26, 2017 

and can be found at docketing sequence forty-two (42). 

On January 25, 2017, following a protracted hearing on January 6, 2017 

on Father's Emergency Petition for Custody filed May 20, 2016, this Court 

issued its "Findings of Fact" and Final Custody Order.1 The Final Custody 

Order awarded the parties shared legal custody, with Mother being awarded 

primary physical custody and Father being awarded partial physical custody 

during the school year. During the summer months, the Final Custody Order 

Appellant, TII C. M- ("Father"), appeals to the Superior Court 

of Pennsylvania from this Court's Final Custody Order dated January 25, 

2017. On February 27, 2017, Appellant timely filed both the Notice of Appeal 

and Statement of Matters Complained of on Appeal. On March 6, 2017, the 

Superior Court of Pennsylvania designated Appellant's appeal as Children's 

Fast Track Appeal. 

I. Introduction 

FERMAN, J. March 31, 2017 

OPINION 

1111 llt:Mm\1~ 131111 

2016-09945-0052 3/J 1/2017 J:06 P;>.·! # 11223647 

Opinion 

Rq,1!!23096474 Fee:S0.00 

\!ark Levv- MontCo Prothonotary 

vs. 

Superior Court No. 745 EDA 2017 

J-M NO. 2016-09945 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, 

PENNSYLVANIA 

FAMILY DIVISION 

2016-09945-0052 Opinion, Page 1 

Circulated 08/03/2017 04:05 PM
'2 See Appellant's Statement of Matters Complained of on Appeal filed February 27, 2017 and 

can be found at docketing sequence forty-four (42). 

7. Whether the Court erred in.finding Father is only entitled to four (4) overnights 

per month with all three of his children. · 

6. Whether Court erred in entering an order where Father never has a weekend 

with all three (3) Children. 

5. Whether the Court erred m entering an order that grants Father only 1 

overnight per week with his daughters thereby creating separation and 

alienation between the Children. 

4. Whether /the] Court erred in allowing the son to stay with Father three (3) 

nights per week while refusing to grant Father custody of the 2 minor daughters 

on the same overnights. 

3. Whether {the] Court erred in ruling Father is only entitled to one overnight per 

week will all three (3) children at the same time. 

2. Whether [the} Court erred in ruling that factors (1), (4), (1 OJ, (12), (14), and (15) 

each/ all weighed in favor of Mother where the weight of the evidence favored 

· Father or favored both parties equally. 

1. Whether {the} Court erred as a matter of law by failing to apply to Father the 

presumption that each parent is capable of being the custodial parent. 

Overall, Appellant raises eighteen (18) issues in his Statement of Issues 

Complained of on Appeal.? Appellant raises the following issues: 

III. Issues on Appeal 

The undersigned directs the Superior Court of Pennsylvania to her 

"Findings of Fact" filed January 26, 2017 where the Facts and Procedural 

History of this case are detailed. 

n. Facts and Procedural History 

awarded the parties shared (50 / 50) physical custody, which was to be 

determined by mutual agreement. 

2016-09945-0052 Opinion, Page 2 
1 7. Whether the Court showed a bias to Mother and her counsel by conducting 

significant conferences in Chambers and allowing Mother's attorney to make 

continuous statements regarding father's alleged alcohol dependency and 

alleged infidelity which were evidence including 2 medical expert opinions and 

hair follicle testing not withstanding witness testimony. 

16. Whether the Court erred in finding Mother has not alienated the children, 

specifically the daughters when the evidence showed mother told the children 

the day before a vacation with Father that father had broken the bond of 

marriage and that father had drinking problems that their eldest daughter 

should be cognizant of his drinking and should ask Father every time she gets in 

the car with him. 

15. Whether the Court erred in interviewing the children outside the purview of 

counsel and asked the Children questions which may have showed favoritism 

and bias toward Mother. 

14. Whether the Court erred in ruling on custody when a custody evaluator was 

not appointed and no custodial evaluation was ever conducted. 

13. Whether the Court erred in denying Father's Motion in Limine and instead 

not only considered Mother's testimony but utilized that testimony as a factor in 

favor of mother while her testimony was not credible and went against the 

weight of objective, non-bias evidence and medical testing. 

12. Whether the Judge erred in finding Father is completely capable of having 

the children equally in the summer but cannot attend to their needs during the 

school year. 

11. Whether the Judge erred in finding during the school year Father can only 

have 1 overnight per week with all three children but during the summer Father 

has 50 percent custody. 

1 0. Whether the Court erred in ruling that it is in the best interest of the children 

to allow the parties' 2 children to commute back and forth at 8 pm at night during 

the school week because "they feel the need to return to mother's home to 

complete their school work" clearly showing Mother has alienated the daughters. 

9. Whether the Court erred by considering alcohol as playing a part in the 

marriage and in the raising of the Children. 

8. Whether the Court erred in finding Father cannot attend to the daily physical, 

emotional, developmental, educational and special needs of the children as a 

physician and surgeon while the Court clearly showed a female bias by stating 

"Mother worked as the CEO of the family." 

2016-09945-0052 Opinion, Page 3 
As with all child custody cases, the "paramount concern is the best 

interests of the child, based on a consideration of all .factors that legitimately 

affect the child's physical, intellectual, moral and spiritual well-being." C. W. v. 

The appellate court "must accept findings of the trial court that are 

supported by competent evidence of record." McMillen at 847. The role of the 

appellate court "does not include making independent factual determinations." 

Id. As it pertains to issues of credibility and the weight of the evidence, the 

appellate court "must defer to the trial judge who presided over the proceedings 

and thus viewed the witnesses first hand." Johns v. Cioci, 865 A.2d 931, 936 

(Pa. Super. 2004) (internal citations omitted). Moreover, the appellate court 

may reject the trial court's conclusions "only if they involve an error of law, or 

are unreasonable in light of the sustainable findings of the trial court." Hanson 

v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005). 

In reviewing a custody order entered by a trial court, the appellate court's 

scope is of the "broadest type [and the] standard [of review] is [an] abuse of 

discretion." McMillen v. McMillen, 602 A.2d 845, 847 (1992). An abuse of 

discretion only "occurs if, in reaching its conclusion, [the] trial court overrides 

or misapplies the law or exercises judgment that is manifestly unreasonable, or 

reaches a conclusion that is the result of partiality, prejudice, bias or ill will as 

shown by the evidence of record." Gates v. Gates, 967 A.2d 1024, 1028 

(Pa.Super.2009). 

A. General Standard of Review 

IV. Discussion 

18. Whether the Court erred in giving mother primary custody where the 

evidence showed mother has, for almost 8 years, required help at least 1 day per 

week from Father's mother and another day a week from her own parents to 

care for the kids, clearly contradicting the Court's biased comment that Mother 

was somehow a "CEO of the family." 

2016-09945-0052 Opinion, Page 4 
"In any action regarding the custody of the child between the parents of 

the child, there shall be no presumption that custody should be awarded to a 

particular parent." 23 Pa.C.S.A. § 5327. Additionally, "In making a 

determination under subsection (a), no party shall receive preference based 

In his Statement of Matters Complained of on Appeal, at Issue One (1), 

Father asserts that this Court abused its discretion by failing to apply to Father 

a presumption that each parent is capable of being the custodial parent. 

Father's assertion here fails, as this Court, under the law, is unable to apply 

any presumptions in favor of either parent. 

B. Presumption in Favor of Father 

This Court's findings, generally, should be given the appropriate amount 

of deference, and this Court's Custody Order should be affirmed. Following is 

this Court analysis regarding the specific issues raised by Father in his 

Statement of Matters Complained of on Appeal. 

Lastly, it is within the "trial court's purview as the finder of fact to 

determine which factors are most salient and critical in each particular case. 

M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. Ct. 2013). The parties cannot 

dictate the amount of weight the trial court places on evidence. S.M. v. J.M., 

811 A.2d 621, 623 (Pa.Super.2002)(quoting Robinson v. Robinson, 645 A.2d 

836, 838 (1994)). 

K.A. W., 774 A.2d 745, 748 (Pa. Super. Ct. 2001) (quoting, E.A.L. v. L.J. W., 662 

A.2d 1109 (1995)). 

In determining the best interest of the child, the court shall consider all 

relevant factors including the sixteen custody factors set forth at Section 

5328(a). The Custody Act requires the court to "delineate the reasons for its 

decision on the record in open court or in a written opinion or order." 23 

Pa.C.S.A. §5323(d). 

2016-09945-0052 Opinion, Page 5 
Pursuant to 23 Pa.C.S.A. § 5328(a), when 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 ... " The parties are unable to dictate the amount of weight the 

trial court places on evidence. That is within the "sole discretion of the trial 

First, Father asserts at Issue Number Two (2) in his Statement of Matters 

Complained of on Appeal that this Court abused its discretion by ruling factors 

one ( 1), four ( 4), ten ( 10), twelve ( 12), fourteen ( 14), and fifteen ( 15) in favor of 

Mother where the weight of the evidence either favored Father or both parties 

equally. Father's assertion here fails, as this Court, as the finder of fact, has 

the sole discretion to determine the amount of weight to place on specific 

pieces of evidence and to determine which factors are critical to the best 

interest of the child in each particular case. 

Father raises three (3) issues in his Statement of Matters Complained of 

on Appeal regarding this Court's weighing of the evidence and. its application of 

the custody factors. Those issues are raised in Father's Statement of Matters 

Complained of on Appeal at Issue Number Two (2), Number Sixteen (16), and 

Number Eighteen ( 18). All of which will be discussed by this Court collectively 

in this section. 

C. Weight of the Evidence and the Application of the Custody Factors 

Accordingly, based upon the evidence of record, this Court did not abuse 

its discretion. 

upon gender in any award granted under this chapter. 23 Pa.C.S.A. § 5328(b). 

Moreover, "the Custody Law does not countenance presumptions between 

parents based upon gender or any other characteristics." D.K.D. v. A.L.C., 141 

A.3d 566, 572 (Pa. Super. Ct. 2016), reargument denied (July 28, 2016), appeal 

denied, 330 WAL 2016, 2016 WL 6462545 (Pa. Nov. 1, 2016). 

2016-09945-0052 Opinion, Page 6 
3 This Court's application of the custody factors to this case can be found in its Findings of 

Fact filed January 26, 2017. • 

Second, Father asserts at Issue Number Sixteen (16) in his Statement of 

Matters Complained of on Appeal that this Court abused its discretion by 

failing to conclude that Mother alienated the children when the evidence, 

according to Father, showed that Mother told the children that Father had 

broken the bonds of marriage and that Father had drinking problems that the 

eldest daughter should be aware of and should ask Father about every time 

she gets in the car with him. 

Here, this Court's conclusions were not an error of law or unreasonable 

based upon the evidence of record. As a result, this Court did not abuse its 

discretion in weighing factors one (1), four (4), ten (10), twelve (12), fourteen 

(14), and fifteen (15) in favor of Mother. This Court, sitting as finder of fact, 

made determinations of credibility and weighed the evidence presented 

throughout the custody trial. Based upon the evidence of record, this Court 

determined that factors one, four, ten, twelve, fourteen, and fifteen-favored 

Mother." 

Furthermore, the appellate court "must defer to the trial judge who 

presided over the proceedings and thus viewed the witnesses first hand." Johns 

v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004)(internal citations omitted). The 

appellate court may reject the trial court's conclusions "only if they involve an 

error of law, or are unreasonable in light of the sustainable findings of the trial 

court." Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005). 

court as the finder of fact, whose paramount concern is the best interest of the 

[children]." S.M. v. J.M., 811 A.2d 621, 623 (2002). As the Superior Court 

stated in M.J.M. v. M.L.G., "It is within the trial court's purview as the finder of 

fact to determine which factors are most salient and critical in each particular 

case." M.J.M. v. M.L.G., 63 A.-3d 331, 339 (2013). 

2016-09945-0052 Opinion, Page 7 
4 See factor 8 of this Court's Findings of Fact dated January 26, 2017. 

s Id. 

Here, this Court conducted a detailed analysis of the custody factors and 

concluded that it was in the best interest of the children to award Mother 

primary physical custody during the school year. In its Findings of Fact, this 

Court found based upon the evidence of record that Mother and Father are 

both loving and capable parents, but that the majority of household duties had 

always been, and currently were still, performed by Mother. This Court 

concluded that the children relied on Mother pre-separation and currently to 

Third, Father asserts at Issue Number Eighteen (18) in his Statement of 

Matters Complained of on Appeal that this Court abused its discretion in 

awarding Mother primary custody where the evidence showed Mother has, for 

almost eight (8) years, required help at least one (1) day per week from Father's 

mother and another day a week from her own parents to care for the children. 

Father's assertion here fails. 

As previously stated above, it is the sole discretion of the trial court as 

the finder of fact to determine the amount of weight to place on evidence and to 

determine which factors are critical to the best interest of the children as issue. 

As a result, based upon the evidence of record, this Court did not abuse its 

discretion in failing to conclude that Mother alienated the children. 

This Court, as the finder of fact, in its sole discretion, found no evidence 

that Mother alienated the children from Father. In fact, while this Court found 

evidence that both parents attempted to turn the children against the other 

parent, neither of their attempts to turn the children against the other were 

successful. In its Findings of Fact filed January 26, 2017, this Court found 

that both parents "engaged in speaking negatively to the children about the 

other parent."4 Moreover, this Court found that, "The children are mature and 

perceptive enough that this conduct has not turned them away from either 

parent."S 

2016-09945-0052 Opinion, Page 8 
Father assets at Issues Three (3), Four (4), Five (5), Six (6), Seven (7), Ten 

(10), Eleven (11), and Twelve (12) in his Statement of Matters Complained of on 

Appeal that this Court abused its discretion in giving significant weight to the 

D. Children's Preference 

As stated previously, it is within the sole discretion of this court, sitting 

as fact finder whose paramount concern is the best interest of the children, to 

determine the amount of weight to place on evidence. As a result, based upon 

the evidence of record, this Court did not abuse its discretion. 

The custody factors are not a mathematically equation. In reaching 

conclusions about the applicability of the custody factor, this Court is not 

mandated to calculate the number of factors that might favor each parent and 

make a mathematical determination of which parent earned more factors to 

fashion an award of custody. Rather, the Court makes a holistic analysis of the 

familial situation and strives to fashion a custody award that is in the best 

interest of the children. Father is not entitled to select or mandate how the 

Court analyses and weighs the various factors. This Court did not ignore the 

fact that Mother receives help from others occasionally. This Court simply did 

not weigh that fact as heavily as Father insists it should have been weighed. 

manage their affairs, and that the children were emotionally close to Mother 

and relied on her to maintain a sense of daily consistency. This Court also 

found that Father is a loving and doting parent, who is fully capable of 

performing all the required parental duties, and that he makes the children a 

priority in his life despite his schedule and the demands of his profession life. 

This Court also found that the children have a very strong preference towards 

spending more time in Mother's household during the school year in order to 

provide them with consistency and stability, especially in their academic 

pursuits. 

2016-09945-0052 Opinion, Page 9 
6 For a more detailed analysis of the children's preference, the Superior Court is directed to 

Factor Seven (7) of this Court's Findings of Fact filed January 26, 2017. 

Although this Court would have preferred a custody order that provided 

a more conventional custody schedule where the children are all together 

during a parent's custodial time, this Court concluded, after interviewing the 

All three children, who ranged from ages ten (10) to sixteen (16), were 

interviewed by this Court separately on the record. Collectively, the children 

presented as thoughtful, kind, mature, and compassionate individuals. The 

children were intelligent, articulate and well-reasoned in their thinking, and 

possessed a clear ability to articulate their thoughts and wishes. All three 

children expressed what type of schedule best suited their personal needs 

without a bias toward or against either parent. It was clear to this Court that 

the children loved both of their parents, and that both parents were equally 

loving and capable." 

"Although the express wishes of a child are not controlling in custody 

decisions, such wishes do constitute an important factor that must be carefully 

considered in determining the child's best interest." McMillen v. McMillen, 602 

A.2d 845, 847 (1992) (internal citations omitted). The trial court, as the finder 

of fact, can best determine the weight to be given to a child's testimony as to 

their preference. Id. "The weight to be accorded a child's preference varies with 

the age, maturity and intelligence of that child, together with the reasons given 

for the preference." Wheeler v. Mazur, 793 A.2d 929, 937-38 (Pa. Super. 

2002)(internal citations omitted). As the child grows older, more weight must 

be given to the child's preference. Id. Where both parents are equally loving and 

capable, the custodial preferences of the child or children may "tip the evidence 

scale." McMillen, 602 A.2d at 848. 

children's preferences. Father's assertion here fails as well. This Court did not 

abuse its discretion in giving significant weight to the children's preference. 

2016-09945-0052 Opinion, Page 10 
First, at Issue Number Thirteen (13) in his Statement of Matters 

Complained of on Appeal, Father asserts that this Court abused its discretion 

by denying his Motion in Limine and instead not only considered Mother's 

testimony but utilized her testimony as a factor in favor of Mother while her 

testimony was not credible and went against the weight of objective, nonbiased evidence and medical testing. Father's assertion here fails, as this Court 

did not abuse its discretion in deferring its evidentiary rulings until trial as 

objections arose. 

Father raises three (3) issues in his Statement of Matters Complained of 

on Appeal that are evidentiary based, and will be discussed by this Court 

holistically under this subsection. Those issues are raised in Father's 

Statement of Matters Complained of on Appeal at Issues Thirteen (13), 

Fourteen ( 14), and Fifteen ( 15). 

E. Evidentiary Issues 

As stated in In re Russo, the general rule "must yield to the paramount 

principle that the best interests of each individual child must be the 

determining factor." In re Russo, 346 A.2d 355, 357 (Pa. Super. 1975). Here, 

this Court concluded that in this case, with these children, the best interest of 

the children was not served by the general rule and that there was no evidence 

that the children's separation has caused alienation of each other or either 

parent. As a result, this Court did not abuse its discretion in creating an 

unconventional schedule in accordance with the preference of each individual 

child. 

children, that this unconventional schedule, in which each child has a slightly 

different schedule, was the schedule that the children prefer and that most 

effectively satisfied the best interest of each child individually. 

2016-09945-0052 Opinion, Page 11 
1 See Notes of Testimony from January 6, 2017 at pages 4-5. 

Prior to trial, Mother notified the Court and counsel that she would not 

call Hollie Boizman and/ or Priscilla Singleton as witnesses, resolving those 

evidentiary issues Father raised in his pre-trial statement regarding those 

witnesses. 7 This Court is unable to respond to specifics as Father failed to raise 

the specific evidentiary issues in which this Court abused its discretion. 

However, all other evidentiary issues raised by Father in his pre-trial statement 

Here, on January 4, 2017, Father filed a pre-trial statement pursuant to 

this Court's scheduling order. In his pre-trial statement, Father notified this 

Court and opposing counsel that he would be motioning this Court for the 

preclusion of certain evidence prior to the start of trial. Father sought to 

preclude: (1) the testimony of Hollie Boizman and Priscilla Singleton; and (2), 

evidence pursuant to Rules 104(a), 403, 404, 405, 410 (and 42 Pa.C.S.A. § 

6142), 602, 702, and 706. 

A Motion in Limine is a "procedure for obtaining a ruling on the 

admissibility of evidence prior to or during trial, but before the evidence has 

been offered." Com. Johnson, 582 A.2d 336, 337 (Pa. Super.1990), affirmed, 

626 A.2d 514 (1993). A Motion in Limine may "preserve an objection for appeal 

without any need to renew the objection at trial, but only if the trial court 

clearly and definitively rules on the motion." Blumer v. Ford Motor Co., 20 A.3d 

1222, 1232 (Pa. Super. 2011). On the other hand, "if the trial court defers 

ruling on a motion in limine until trial, the party that brought the motion must 

renew the objection at trial or the issue will be deemed waived on appeal." Id. 

The admissibility of evidence is "vested in the sound discretion of the trial court 

and will not be reversed on appeal absent an abuse of discretion." Com. v. 

Brown, 839 A.2d 433, 435 (Pa. Super. 2003)(internal citations omitted.) An 

abuse of. discretion occurs when a trial court, "in reaching its conclusions, 

overrides or misapplies the law, or exercises judgment which is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill will." Id. 

2016-09945-0052 Opinion, Page 12 

.. ·····--- -------- 
e See page 31 of the Notes of Testimony from January 6, 2017. 

Here, neither party filed a motion requesting the Court to appoint a 

custody evaluator nor was there an agreement between the parties to appoint 

an evaluator, and the Court found no basis to raise the issue sua sponte. With 

no custody evaluator involved in the case, the Court was required to make a 

custody determination based upon the evidence presented of record and the 

Court's analysis of the best interests of the children with consideration of the 

Pursuant to Pa.R.C.P. No. 1915.8, "The court may order the child(ren) 

and/ or any party to submit to and fully participate in an evaluation by an 

appropriate experts or experts. The order, which shall be substantially in the 

form set forth in Rule 1915.18, may be made upon the court's own motion, 

upon the motion of a party with reasonable notice to the person to be 

examined, or by agreement of the parties." 

Second, at Issue Number Fourteen (14) in his Statement of Matters 

Complained of on Appeal, Father asserts that this Court abused its discretion 

in ruling on custody when a custody evaluator was not appointed and no 

custodial evaluation was ever conducted. 

For example, Father's counsel objected to the relevance of Mother's 

counsel's question on cross-examination pertaining to whether Father's 

employer knew about his pending DUI charge.s This Court overruled Father's 

counsel's objection stating, "You questioned him extensively about whether or 

not he's been disciplined or whether consequences have been imposed at work, 

and I think that's a fair cross-examination question based upon the questions 

you've asked." (N.T. 1 /6/ 17 pages 31-31). Accordingly, this Court did not 

abuse its discretion in deferring its ruling on Father's Motion in Limine until 

trial. 

were not handled preliminary, but were deferred by this Court and ruled upon 

as the evidentiary issues arose during trial upon Father's objection. 

2016-09945-0052 Opinion, Page 13 
9 The children's interviews have be sealed by this Court and have been sent to the Superior 

Court for review. 

First, at Issue Number Eight (8) in his Statement of Matters Complained 

of on Appeal, Father asserts that this Court abused its discretion in finding 

that Father cannot attend to the daily physical, emotional, developmental, 

educational and special needs of the children as a physician and surgeon while 

showing a clear female bias towards Mother by describing Mother as the CEO 

of the family in its Findings of Fact. The Court's used the phrase "CEO" to 

characterize Mother's role and responsibility for managing the family's affairs 

while Father was, based upon the evidence, managing his medical business. 

Twice, Father asserts in his Statement of Matters Complained of on 

Appeal, at Issue Number Eight (8) and Seventeen ( 17), that this Court 

demonstrated a bias towards Mother in various ways. 

F. Bias Towards Mother 

This Court interviewed the children outside the presence of counsel only 

after counsel for both Mother and Father waived their presence on the record. 

(N.T. 1/6/ 17 page 150). Furthermore, a careful review of the record will 

demonstrate that this Court's questions were balanced and neutral, and void of 

any evidence of favoritism and/or bias towards Mother.? As a result, Father's 

assertion here fails. This Court did not abuse its discretion. 

Third, at Issue Number Fifteen (15) in his Statement of Matters 

Complained of on Appeal, Father asserts that this Court abused its discretion 

in interviewing the children outside the purview of counsel and asked the 

children questions which may have showed favoritism and bias towards 

Mother. 

statutory custody factors. Accordingly, this Court did not abuse its discretion 

in ruling on custody without a custody evaluation. 

2016-09945-0052 Opinion, Page 14 
io Id. 

11 Findings of Fact dated January 26, 2017. 

Father's assertion of bias must be demonstrated by the evidence of 

record. Here, the record is void of any evidence of bias. This Court's use of the 

term CEO does not establish or demonstrate a bias towards Mother, or her 

gender, as Father asserts. The term CEO simply describes Mother's role in the 

household, which was credibly testified to by Mother, Father, and children. 

Following this Court's use of the term, it listed Mother's household 

However, this Court did not find that Father cannot attend to the daily 

physical, emotional, developmental, educational, and special needs of the 

children. In fact, in its Findings of Fact, at factor ten (10), this Court stated, 

"Father is also an involved, loving, doting parent. He attends their activities, 

participates in school programs and always makes time to engage with the 

children."11 Additionally, as stated in this Court's Findings of Fact at factor 

three (3), "Father makes the children a priority in his life." 

"One substantial factor in determining if a modification of a custody 

order is in the child's best interest, although not the sole factor, is the role that 

one parent has assumed as the primary caretaker of the child." Johns v. Cioci, 

865 A.2d 931, 937 (Pa. Super. 2004)(internal citations omitted). Here, this 

Court, based upon the evidence of record, found that Mother has been the 

children's primary caretaker. This Court found that Mother is more likely to 

attend to those needs because "she coordinates all their activities, their 

required appointments, helps them stay organized and balance in the various 

school work, extracurricular, social and medical commitments they have."IO 

This Court found that the children are emotionally close to their Mother and 

rely on her to maintain this sense of daily consistency. 

The record is completely devoid of any favoritism displayed by the Court for 

Mother or the female gender. Father's assertion, accordingly, should fail. 

2016-09945-0052 Opinion, Page 15 
Mother testified credibly to her observations of Father's history of binge 

drinking and poor decision-making. Mother described Father's history of 

drinking too much as a consistent cycle which typically began with a building 

up period, a crisis event, an apology, a promise to refrain from alcohol 

consumption, a period of time where Father in fact refrained from consumption 

excess. 

Father's claim that his alcohol dependency and infidelity were 

unsupported by any credible evidence is unsubstantiated by the evidence of 

record. At trial, both Father and Mother testified regarding incidents where 

Father drank to excess in several public situations. The Court found that 

Father minimized all the incidents where he drank to excess. He argued these 

were isolated incidents that did not reflect a problem with alcohol. In addition, 

Mother testified about other non-public incidents where Father drank to 

This Court notes that both parties requested "off the record" conferences 

in chambers. None of the statements made by either counsel during the off the 

record conferences were made a part of the record or used by this Court in its 

determination of what was in the best interest of the children. This Court's 

award of custody was based solely on the evidence of record. 

Second, Father asserts, at Issue Number Seventeen (17) in his Statement 

of Matters Complained of on Appeal, that this Court showed a bias towards 

Mother and her counsel by conducting significant conferences in chambers and 

allowing Mother's attorney to make continuous statements regarding Father's 

alleged alcohol dependency and alleged infidelity which were unsupported by 

any credible evidence, and to the contrary, were against the weight of the 

evidence including two medical expert opinions and hair follicle testing. not 

withstanding witness testimony. 

responsibilities, such as coordinating all their activities, assignments and 

appointments. 

2016-09945-0052 Opinion, Page 16 
Pursuant to 23 Pa.C.S.A. § 5328(a)(14), this Court is required to consider 

the history of drug and/ or alcohol abuse of a party or member of a party's 

household in determining the best interest of a child or children. In all custody 

cases, alcohol abuse must be considered by the Court in determining what is 

in the best interest of the children. As discussed above, the Court found 

credible, compelling evidence of Father's alcohol abuse, Father's history of 

binge drinking and poor decision-making as a result. The Court appropriately 

considered this evidence in its review of the custody factors. Accordingly, based 

upon the evidence of record, this Court did not abuse its discretion. 

Father asserts, at Issue Number Nine (9) in his Statement of Matters 

Complained of on Appeal that this Court abused its discretion by considering 

alcohol as playing a part in the marriage and in the raising of the children. 

G. Father's Alcohol Use 

Lastly, pertaining to this Court's bias towards Mother, the record is void 

of any evidence of bias towards Mother. This Court's custody determination is 

based solely upon the evidence of record. Accordingly, based upon the evidence 

of record, this Court did not abuse its discretion. 

As it pertains to Father's infidelity, Mother's counsel attempted to 

question Father about the specifics of his infidelity. This Court ruled, however, 

that the evidence was not relevant and denied its admission on the record. 

and then the entire cycle repeating itself. One of the parties' daughters also 

testified credibly to her exposure to Father's history of alcohol use during the 

marriage and its impact on the family. This evidence was important to the 

Court's analysis of the children's best interests. 

2016-09945-0052 Opinion, Page 17 
Copies of Opinion sent to: 

Plaintiffs Attorney: Cheryl L. Young, Esq. 

Defendant's Attorney: Andrew Smith, Esq. 

Chambers 

Court Administration - Family Division 

Superior Court of Pennsylvania 

Based on the foregoing reasons, this Court's Custody Order dated 

January 25, 2017 should be AFFIRMED. 

2016-09945-0052 Opinion, Page 18 

V. Conclusion