J-S47008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.A.C.

v.

J.W.C. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 637 MDA 2019

Appeal from the Order Entered March 27, 2019

In the Court of Common Pleas of York County Civil Division at No(s): 

2018-FC-001927-03

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 25, 2019

Appellant, J.W.C. (“Father”), appeals from the March 27, 2019 Order 

that, inter alia, awarded Appellee, K.A.C. (“Mother”), sole legal and physical 

custody of the parties’ children, 5-year-old G.C. (“Child”) and 3-year-old H.C 

(collectively, “Children”). Because the trial court failed to engage in a 

mandatory assessment of the 23 Pa.C.S. § 5328 custody factors prior to the 

notice of appeal deadline, we are constrained to vacate the part of the Order 

that addresses custody and remand this case for further proceedings. 

A detailed factual and procedural history is unnecessary to our 

disposition. Briefly, Father and Mother married in August 2012 and are the 

parents of Children, who were born during the marriage. The parties 

separated in March 2017 after Child disclosed to Mother that Father sexually 

abused her. Custody Complaint, 9/24/18, at ¶19. On September 24, 2018, 

Mother filed a Complaint for Divorce and Custody alleging that Father sexually 
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abused Child and requesting that the trial court grant Mother sole legal and 

physical custody of Children. 

On October 19, 2018, after a custody conciliation conference, the trial 

court entered an Interim Order for Custody granting the parties shared legal 

custody, Mother primary physical custody, and Father supervised visitation 

every Saturday from 3:00 PM to 7:00 PM.

On March 20, 2019, the trial court held a hearing on Mother’s Complaint 

for Custody. At the beginning of the hearing, the parties submitted a signed 

Stipulation of Facts to the trial court.1 N.T. Hearing, 3/20/19, at 3. Mother 

testified on her own behalf and called the following witnesses: Jami Dumler, 

Licensed Social Worker at Pennsylvania Counseling; S.A., Children’s maternal 

grandmother; and O.A, Children’s maternal aunt. Father testified on his own 

behalf.

At the conclusion of the hearing, the trial court informed parties that it 

was going to “dictate an opinion” and stated the following on the record:

It is the opinion of this Court, based on credible testimony 

provided from [Child]’s therapist, mother, maternal grandmother, 

and [Child], and I have no doubt that Father has sexually abused 

Child.

In addition to [Child]’s own disclosure of sexual abuse to me, 

credible testimony was provided that [Child] has exhibited a 

multitude of symptoms of sexual abuse including the following:

Initiating sex acts with other children; describing sex acts she 

should have no knowledge of; playing out sexually activities with 

dolls; drawing out sexual scenes, particularly private parts on 

____________________________________________

1 We are not able to locate this Stipulation of Facts in the certified record. 
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people; aggressive masturbation; asserting objects into her 

vagina; urinary accidents and potty training regression; 

encopresis; nightmares; night terrors; and recurrent fear based 

dreams; dramatic changes in behavior, particularly her fear of 

Father in clinging to Mother at custody exchanges; [Child]’s 

explosive anger and aggression; and [Child] showing fear of 

places or events with little explanation. 

For example, her fear of being left alone with her therapist; or her 

fear of being left alone with me when I was getting ready to 

interview her in chambers.

And another example is when she threw-up on herself at a custody 

exchange with Father. 

Individually these symptoms may not necessarily be an indication 

of sexual abuse, but viewed together they have convinced me 

[Child] has been abused.

Because this [c]ourt is making a finding of sexual abuse against 

Father, and I believe it is the only significant factor in this case, 

and I’m not going to review any other custody factors because 

they have no weight when compared with this finding of abuse.

This finding of abuse necessitates that I grant sole legal and 

physical custody to mother, and I’m very sorry that the system 

has failed [Child] to this point.

N.T. Hearing, 3/20/19, at 168-170; Trial Ct. Op., filed 3/27/19, at 1-3. On

March 27, 2019, the trial court issued an Order that, inter alia, granted sole 

legal and physical custody of Children to Mother and ordered Father to have 

no contact with Children.2 

Father timely appealed and filed a contemporaneous Concise Statement 

of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) 

(“Concise Statement”). In his Concise Statement, Father asserted, inter alia, 

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2 The Order also found Father in contempt for violating the terms of the 

Interim Order for Custody.
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that the trial court “erred and abused its discretion by failing to make findings 

under each of the 16 child custody factors [pursuant to 23 Pa.C.S. 5328].” 

Concise Statement, 4/22/19, ¶3. In response, the trial court issued a Rule 

1925(a) Opinion that addressed the Section 5328 custody factors. 

Father raises the following issue for our review: “Whether the [c]ourt 

erred and abused its discretion by awarding Mother sole legal and physical 

custody of [Children] by concluding that Father sexually abused [Child] and 

that such finding over-rules [sic] all other factors.” Father’s Brief at 5. 

This Court reviews a custody determination for an abuse of discretion. 

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse 

of discretion “merely because a reviewing court would have reached a different 

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial 

court abuses its discretion if, in reaching a conclusion, it overrides or 

misapplies the law, or the record shows that the trial court’s judgment was 

either manifestly unreasonable or the product of partiality, prejudice, bias or 

ill will.” Id. 

Further, our scope of review is broad, but we are “bound by findings 

supported in the record, and may reject conclusions drawn by the trial court 

only if they involve an error of law, or are unreasonable in light of the 

sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512 

(Pa. Super. 2006) (citation omitted). Importantly, “[o]n issues of credibility 

and weight of the evidence, we defer to the findings of the trial judge who has 
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had the opportunity to observe the proceedings and demeanor of the 

witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation 

omitted). We can only interfere where the “custody order is manifestly 

unreasonable as shown by the evidence of record.” Saintz, 902 A.2d at 512 

(citation omitted). 

It is well settled that “[t]he paramount concern in child custody cases is 

the best interests of the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). 

“The best-interests standard, decided on a case-by-case basis, considers all 

factors which legitimately have an effect upon the child’s physical, intellectual, 

moral and spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 

2017).

The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court 

to consider all of the Section 5328(a) best interests factors when “ordering 

any form of custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the 

reasons for its decision when making an award of custody either on the record 

or in a written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super. 

2014). See also 23 Pa.C.S. § 5323(a), (d). However, “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.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 

2013). Notably, “section 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen Section 5328 custody factors prior to 
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the deadline by which a litigant must file a notice of appeal.” C.M. v. M.M., 

2019 PA Super 216, *4 (filed July 12, 2019), quoting C.B. v. J.B., 65 A.3d 

946, 955 (Pa. Super. 2013). 

In his Brief, Father argues that the trial court erred by failing to consider 

all of the Section 5328 custody factors prior to issuing a Rule 1925(a) Opinion. 

Father’s Brief at 13. We are constrained to agree. 

Our review of the record reveals that the trial court only considered one 

of the Section 5328 custody factors when it made its custody decision. In 

fact, the trial court conceded this when it stated the following on the record 

and in a written Opinion: “Because this [c]ourt is making a finding of sexual 

abuse against Father, and I believe it is the only significant factor in this case, 

and I’m not going to review any other custody factors because they have no 

weight when compared with this finding of abuse.” N.T. Hearing, 3/20/19, at 

170; Trial Ct. Op., filed 3/27/19, at 3. As noted above, the trial court must 

engage in a “mandatory assessment of the sixteen Section 5328 custody 

factors prior to the deadline by which a litigant must file a notice of 

appeal.” C.M., supra at *4. Thus, it is of no moment that the trial court

considered the Section 5328 custody factors in its Rule 1925(a) Opinion, after

Father filed his Notice of Appeal. 

Accordingly, we vacate the portion of the March 27, 2019 Order that 

addresses custody, and remand this matter for further proceedings. The trial 

court shall immediately enter an interim custody order. The trial court shall 
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review the record, incorporating evidence from the March 20, 2019 custody 

hearing and the parties’ Stipulation of Facts. If, after reviewing the record, 

the trial court needs additional evidence on discrete issues, the trial court shall 

schedule a hearing for that limited purpose. The trial court shall ensure that 

the parties’ Stipulation of Facts is included in the certified record. The trial 

court shall enter a final custody order based on its consideration and 

assessment of the Section 5328 custody factors within 30 days of this 

Memorandum or, if an evidentiary hearing is scheduled, within 30 days of the 

conclusion of the hearing. Finally, the trial court shall delineate on the record 

or in a written opinion the reasons for its decision—including consideration of 

all of the Section 5328 custody factors—prior to the deadline by which Father

must file a notice of appeal.

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Order vacated in part. Case remanded with instructions. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2019

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In light of our disposition, we decline to address Father’s remaining 

arguments. 
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