J-S12044-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

P.J.A.,

 Appellant

 v.

H.C.N.,

 Appellee

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:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2395 EDA 2015

Appeal from the Order July 7, 2015,

in the Court of Common Pleas of Lehigh County,

Domestic Relations, at No(s): 2007-FC-0427

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

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 18, 2016

P.J.A. (Father) appeals from the order entered July 7, 2015, which, 

inter alia, modified provisions of a prior custody order entered with respect 

to P.C.A. (Child). Upon review, we affirm in part and reverse in part.

Father and H.C.N. (Mother)1 met in New York in May 2005 and were 

married in February 2006. Child was born in August 2006. Father, Mother, 

and Child moved into a newly-constructed home in October 2006, and 

Father lost his job in March 2007. The parties separated in late-March 2007. 

“There was a rash of incidents over a brief period in March 2007, which 

 

1 With respect to the parties, we observe the following. Mother is an 

attorney licensed to practice law in Arizona. Throughout the course of the 

litigation, she has alternated between being represented by counsel and 

proceeding pro se. For this appeal, she is pro se. Father has also been 

represented by counsel and appealed pro se at different times in this 

litigation. For this appeal, he is represented by counsel.
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involved calls to police by both parties, arguments, claims of physical abuse 

by Mother against Father and claims of drunkenness by Father against 

Mother.” Trial Court Opinion, 5/15/2009, at ¶ 20. “Each party initiated 

vindictive, immature and selfish acts against the other party beginning 

primarily in late 2006 and then throughout the next two years.” Id. at ¶ 21. 

On April 5, 2007, after a hearing before the trial court, it entered the 

first of several interim custody orders. That order provided, in relevant part, 

that Father would have temporary physical and legal custody of Child. 

Mother would exercise partial physical custody on a daily basis for a 

minimum of three hours per day as coordinated by the parties. On May 4, 

2007, the parties agreed to a new custody schedule, in which Mother’s 

periods of partial physical custody were set forth in a more specific manner. 

On November 20, 2007, the parties agreed to an interim order of court that 

provided Mother and Father shared legal and physical custody of Child.

On January 22, 2008, Father and Mother agreed to a final custody 

order. That order provided, in relevant part, that the parties shall have 

shared legal custody with primary physical custody to Mother subject to 

Father’s exercise of partial physical custody at specified times, including 

alternate weekends, and other dinner and overnight visits. That order also 

included a holiday schedule.

On March 11, 2008, Father filed a petition for modification of custody. 

That petition was followed by several petitions for sanctions against Mother. 
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On January 16, 2009, Mother filed a petition for relocation. The trial court 

held hearings on March 23 through 26 and April 2, 2009 on these petitions. 

On May 15, 2009, the trial court entered an order denying Mother’s petition 

for relocation. The trial court also ordered that Mother and Father shall have 

shared legal custody as well as equal, shared physical custody of Child.

After the entry of this order, the parties continued to proceed with 

their divorce, as well as litigate numerous petitions for special relief, 

sanctions, and contempt over disputes about a wide range of issues for Child 

including, but not limited to: out-of-country travel; visitation with 

grandparents; Child’s aggressive behavior; information about Child’s health 

and doctors; the custody schedule for Halloween; and selection of an afterschool program. While many petitions were ruled upon, others were left 

unresolved. 

On March 27, 2013, the trial court entered an order and opinion, by 

agreement of the parties, that it would conduct two rounds of hearings and 

then enter an order to resolve “all of the issues raised in these unresolved 

pleadings.” Trial Court Opinion, 3/27/2013, at 2.2 In its order and opinion 

issued after those hearings, the trial court addressed the statutory factors 

 

2 This order and opinion were authored by Judge Ford. Around March 2013, 

Judge Ford, who was the judge on this case ab initio and for all proceedings, 

was transferred to a different division of the trial court. Judge Reichly was 

assigned the case. He authored all subsequent orders and opinions in this 

case. 
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set forth in 23 Pa.C.S. § 5328(a). Notably, the trial court continued the joint 

legal and physical custody arrangement. The parties then continued their 

practice of filing numerous petitions for special relief, contempt, and 

sanctions. 

On March 31, 2014, Mother filed a petition for sanctions and a 

complaint to modify custody. Specifically, she requested that the trial court 

grant primary physical custody to her. Mother filed an amended petition on 

May 9, 2014, averring that Father surreptitiously registered Child to play 

travel soccer in violation of a court order. That petition also averred that 

Father enrolled child in Holy Communion preparation (PREP) classes in 

violation of a court order. Thus, Mother requested both primary physical 

custody and sole legal custody of Child.

On June 3, 2014, Father filed answers to both petitions, a counterpetition, and a petition for contempt. Father also requested primary physical 

custody of Child.

Hearings were held on October 6 to 8, 2014, April 27 through May 1, 

2015, and May 7 to 8, 2015.3 On July 7, 2015, the trial court entered an 

order granting in part and denying in part the petition for modification. After 

an analysis of the statutory factors, the trial court continued the parties’ 

shared legal and physical custody arrangement. The trial court also entered 

 

3 Both parties were pro se for these petitions and hearings.
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more specific orders with respect to Child’s religious upbringing and 

participation in sports.

Father timely filed a notice of appeal and concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i), and the trial 

court filed an opinion.

On appeal, Father asks this Court to consider the following: “Does the 

lower court’s custody order further the best interests of [Child]?” Father’s 

Brief at 4. Specifically, Father sets forth four issues for our review:

A. The trial court erred by substantially limiting Father’s ability 

to present his case.

B. Even if remand is not warranted, the record establishes that 

Father should have been awarded primary physical custody.

C. The lower court’s restriction of Father’s ability to practice his 

religion with [Child] is contrary to this Court’s precedent.

D. There is no evidence in the record to suggest that [Child’s] 

participation in sports, or Father’s choice to coach his son, is 

detrimental to [Child].

Id. at 10, 13, 14, 16 (unnecessary capitalization and bold-type omitted).4

 

4

Father’s brief violates Pa.R.A.P. 2116(a), which provides that “[n]o 

question will be considered unless it is stated in the statement of questions 

involved or is fairly suggested thereby.” “[A]s a practical matter, this Court 

[dismisses] appeals for failure to conform to the Rules of Appellate 

Procedure only where the failure to conform to the Rules results in the 

inability of this Court to discern the issues argued on appeal.” Kern v. Kern, 

892 A.2d 1, 6 (Pa. Super. 2005). Despite Father’s one question statement 

of questions involved, which expands to four separate questions in his 

argument section, we will not dismiss Father’s appeal for failing to conform 

to Pa.R.A.P. 2116(a). Although we do not condone this format, we are able 

to discern Father’s arguments.
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We set forth our well-settled standard of review when considering a 

child custody order.

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept findings 

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

and weight of the evidence, we must defer to the presiding trial 

judge who viewed and assessed the witnesses first-hand. 

However, we are not bound by the trial court’s deductions or 

inferences from its factual findings. Ultimately, the test is 

whether the trial court’s conclusions are unreasonable as shown 

by the evidence of record. We may reject the conclusions of the 

trial court only if they involve an error of law, or are 

unreasonable in light of the sustainable findings of the trial 

court.

E.R. v. J.N.B., __ A.3d __, 2015 WL 8717198, at *5 (Pa. Super. 2015) 

(quoting V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations 

omitted)).

“When a trial court orders a form of custody, the best interest of the 

child is paramount. The factors to be considered by a court when awarding 

custody are set forth at 23 Pa.C.S. § 5328(a).” E.R., 2015 WL 8717198, at 

*5-6 (citations and quotations omitted).

(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.
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(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, educational and 

special needs of the child.

(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.
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(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. § 5328(a). 

Father argues that the trial court’s “evaluation of the custody factors 

was improperly skewed in favor of Mother because the court precluded 

Father from presenting compelling, relevant evidence, the consideration of 

which would have resulted in a different consideration of the custody 

factors.” Father’s Brief at 10. Thus, Father requests that this Court reverse 

and remand “to allow Father to present this evidence.” Id. at 13. 

 Father’s chief complaint in this regard is the trial court’s limitation of 

testimony to events occurring after the entry of the November 20, 2013 

custody order.5 The trial court stated that it was “not going to go back over 

 

5 To provide background on what led up to the trial courts limitation, we 

offer the following summary. On April 5, 2012, Father filed a petition for 

contempt alleging that Mother deprived Father of his custodial time such 

that he was unable to trick-or-treat with Child on October 28, 2011 

(Halloween 2011). Halloween had been a source of contention each year, 

and in December 2010, the trial court ordered that Father was to have Child 

for Halloween 2011. Halloween 2011 would be celebrated on October 28, 
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ancient history from four years ago making a custody determination today.” 

N.T., 10/6/2014, at 167. Further, it would not deal with “an attempt to go 

over a record which could have been or was created before Judge Ford years 

ago.” Id. at 171-72.

“[T]he admission or exclusion of evidence is within the sound 

discretion of the trial court. In reviewing a challenge to the admissibility of 

evidence, we will only reverse a ruling by the trial court upon a showing that 

it abused its discretion or committed an error of law.” R.K.J. v. S.P.K., 77 

A.3d 33, 41 (Pa. Super. 2013) (citations and quotations omitted).

The trial court explained:

 

2011, during Child’s afternoon kindergarten class and for trick-or-treating 

that evening. Father was to have custody from Friday, October 21, 2011 to 

Friday, October 28, 2011. Mother’s father died on October 20, 2011. So as 

not to impede Father’s custodial time, Mother asked her mother that she 

wait a week for the funeral. Mother then scheduled a flight to the funeral for 

herself and Child for the afternoon of October 28, 2011, several hours before 

her custodial time began. Mother notified Child’s school he would be missing 

afternoon kindergarten, and sent Father an e-mail at 1:54 p.m. that 

afternoon to tell Father that she was taking Child to the funeral. See

Father’s Petition for Contempt, 4/5/2012; N.T., 1/25/2013, at 180-87. 

Father did not receive that e-mail prior to arriving at the school where he 

found out Child was not there. On March 27, 2013, the trial court dismissed 

the petition for contempt because Father waited six months to file it.

At the October 6, 2014 hearing, Mother called Antoinette Clark to 

testify. She is a friend of Father and the mother of Child’s friend. Father 

asked her about a conversation between the two of them that occurred in 

the summer of 2014 where the topic of Halloween 2011 was raised. Mother 

objected. The trial court ruled that the testimony was inadmissible as 

irrelevant. N.T., 10/6/2014, at 166-67.
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It is significant to note that the parties in this case have a 

longstanding history of endeavoring to re[-]litigate issues 

previously addressed. Both parties are guilty of attempting to 

bring up past issues at hearings under the guise of 

demonstrating the other party’s pattern of behavior over the 

years. The [trial court] is familiar with the parties’ history and 

has communicated that to them. Moreover, Judge Ford has 

issued several orders and opinions addressing various issues the 

parties have raised over the years. It would not be productive to 

retread old ground in the form of testimony when there are 

volumes of Notes of Testimony thoroughly covering the parties’ 

grievances with one another.

Trial Court Opinion, 8/26/2015, at 5 n. 5. 

Based on the foregoing, it is evident that the trial court was very 

familiar with the facts of this case from the volumes of transcripts, orders, 

and opinions already issued in this case. The custody of Child has been 

litigated essentially since Child’s birth, and we agree with the trial court that 

it would serve no legitimate purpose to rehash every issue with every 

petition to modify custody. Moreover, because the trial court was aware of 

the incidents that would affect the aforementioned custody factors, even if 

they were not specifically litigated during the most recent ten-day custody 

trial, we cannot see how the trial court committed an error of law or abused 

its discretion in weighing the custody factors on the record it had. 

Accordingly, Father is not entitled to a remand for a new custody hearing 

which includes this testimony, nor is he entitled to a re-weighing of the 

factors on this basis.
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Father next contends that the trial court erred with respect to factor 

13, which requires the trial court to assess “[t]he level of conflict between 

the parties and the willingness and ability of the parties to cooperate with 

one another....” 23 Pa.C.S. § 5328(a)(13). Father contends that the trial 

court should not have found this factor to be neutral, but should have been 

in his favor because of Mother’s treatment of paternal grandmother.6

Instantly, the trial court set forth a thorough analysis of all of the 

factors. See Trial Court Opinion, 7/7/2015, at 3-12. It determined that of 

the seventeen factors, nine were neutral; three were not relevant or 

considered; four weighed slightly in favor of Mother; and one weighed in 

favor of Father. We observe that even if the trial court found that factor 13 

weighed in Father’s favor, rather than being neutral, we are not convinced it 

would have tipped the scales such that the trial court would have granted 

Father primary physical custody.

Additionally, with respect to factor 13, the trial court offered the 

following detailed analysis:

Both parties are guilty of being so obsessed with finding 

flaws in the other’s parenting skills that the [c]ourt is amazed 

the parties’ behavior has not had a more detrimental effect on 

[Child]. From [Mother’s] perspective, [Father] has deliberately 

 

6

“[Child’s] paternal grandmother often picked up [Child] from school and 

[Child] was with her on numerous occasions when [Father] got home from 

work. [Mother] engaged the services of private investigators to spy on 

[Father] and [paternal grandmother] in order to prove that [Father] was not 

personally exercising some of his periods of physical custody.” Trial Court 

Opinion, 8/26/2015, at 14-15.
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enrolled [Child] in athletic activities which so dominate [Child’s] 

time out of school that [Mother] felt she was not able to 

schedule any events herself with her son. [Mother] accused 

[Father] of scheduling birthday parties for [Child] giving her little 

advance notice. She accused [Father] of scheduling medical 

appointments for [Child] at inconvenient times without 

consulting her, of failing to give [her] sufficient notice he was 

going to be late picking up [Child] for weeknight dinner visits, 

and for dishonestly telling [Child’s] school he was only a few 

minutes away in order to allow for release of [Child] to paternal 

grandmother when in fact [Father] is consistently out of the area 

at the time he asserted he would assume physical custody of 

[Child]. [Mother] has accused [Father] of manipulating his 

employment status to falsely claim he was available to care for 

[Child] when in fact he was not, of attempting to encourage 

[Child] to provide information about [Mother’s] private life, and 

for encouraging [Child] to disrespect [Mother’s] decision-making 

and the legitimacy of her parenting decisions.

Alternatively, [Father] alleges [Mother] has engaged in 

emotionally aberrational behavior. He accused [Mother] of being 

mentally unbalanced and refusing to co-parent with [him] for 

[Child’s] benefit. Often what [Father] characterizes as an 

unwillingness to co-parent is a lack of agreement by [Mother] 

with what [Father] has unilaterally determined is in the best 

interests of [Child], such as [Child] being baptized in a religious 

faith significantly different from [Mother’s], enrolling [Child] in 

athletic teams without consulting [Mother] or gaining her assent, 

and insisting [Child] attend practices and games on [Mother’s] 

custodial time. [Father] emotionally and passionately described 

his pride in his son’s athletic abilities at such a young age, and 

how he is confounded by [Mother’s] unwillingness to enable to 

[Child] to fulfill his athletic potential. A corollary objection from 

[Father] is [Mother’s] unwillingness to allow [Father] to coach 

[Child] in every sport in which he participates, which [Mother] 

views as an underhanded method by [Father] to spend time with 

[Child] even during those days and times when [Child] is 

supposed to be in [Mother’s] custody.

As alluded to above, because of the hostility between the 

parties, the [trial court] is compelled to resort to extraordinary 

delineation of the boundaries of each parent’s custodial periods 

and responsibilities in order to reduce the possibility of more 
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conflict between the parties. Such limitations include prohibiting 

[Father] from participating as a coach on more than one of 

[Child’s] athletic teams per school calendar year, and precluding 

[Father] from having [Child] accepted into [Father’s] religious 

faith without [Mother’s] written consent. [Mother] will be 

precluded from assuming custody at any time when [Father] is 

not personally available and present to take custody of [Child] 

for a weeknight dinner visit or from school, and will be prohibited 

from stalking the paternal grandmother when she fills in for 

[Father] to pick up [Child] from school. [Mother] is encouraged 

to accommodate [Child’s] interest in participating in sports and 

Catholic religious services.

Trial Court Opinion, 7/7/2015, at 9-11.

It is evident that the trial court was aware of and accounted for 

Mother’s behavior in stalking paternal grandmother as Father now argues. 

However, the trial court weighed that behavior with Father’s behavior and 

concluded that this factor was neutral. Father’s arguments largely amount 

to a contention that the trial court should have interpreted certain evidence 

in his favor or otherwise challenge the weight the trial court attributed to the 

evidence and its credibility determinations, which we may not disturb on 

appeal. See R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015). Thus, 

Father is not entitled to relief on this issue. 

Father next argues that the trial court has interfered with Father’s 

ability to practice Catholicism with Child. Father’s Brief at 14-16. We provide 

the following background on this issue.

Father is a practicing Catholic. Mother was raised as a Lutheran and is 

currently a member of the United Church of Christ. The issue of Child’s 
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religious upbringing has been in dispute from the inception of this custody 

action.

The trial court’s first custody order provided the following with respect 

to baptism of Child. Father “agrees that he will not make any major 

decisions without consulting and the consent of [Mother].” Trial Court Order, 

4/11/2007, at 3 (unnumbered). However, the following ensued shortly 

thereafter.

24. Notwithstanding a specific court prohibition, on April 26, 

2007, Father registered [his family] at St. Joseph the Worker 

Church in Orefield, Pennsylvania. He registered [Child] for 

Catholic baptism. He registered for the August 4, 2007, 

baptismal workshop. Then he scheduled [Child’s] baptism for 

late 2007. He chose the Godparents for [Child]. All of this was 

done without the knowledge and consent of Mother even though 

she shared legal custody with him at the time.

25. On December 2, 2007, Mother, with her friend, Colleen 

Geiger, went to St. Joseph’s church in the early afternoon. They 

saw vehicles with New Jersey plates.[7] Inside the church was 

Father with [Child] and party assembled for [Child’s] baptism. 

[Child] was baptized.

Trial Court Opinion, 5/15/2009, at ¶¶ 24-25 (footnote added).

A subsequent custody order provided that the “parties have agreed 

that [Child] may be raised in both the Catholic and [other Christian] faiths 

until such time as [Child] is old enough to choose a faith for himself.” Trial 

Court Order, 2/1/2008, at 15. The next custody order provided that 

[e]ach parent may provide religious instruction to [Child] during 

each parent’s respective period of custody; however, neither 

 

7

Father’s parents and family resided in New Jersey at that time.
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parent shall denigrate the religion of the other parent nor 

discourage [Child] from participating in it. It is appropriate that 

the parental approach to religious issues in respect to [Child’s] 

religious training and practice be discussed in therapy.

Order, 5/18/2009, at 6.

These issues arose once again when it was time for Child to be 

enrolled in preschool. Father wished for Child to be enrolled for pre-school 

at St. Joseph the Worker Catholic Church. The trial court ordered that Child 

be enrolled at a different preschool that was not associated with any religion. 

When Child reached elementary school age, Father again petitioned the trial 

court to enroll Child at St. Joseph the Worker Catholic School. On March 8, 

2011, the trial court ordered that Child be enrolled at public school for 

kindergarten. Father filed a notice of appeal from that order. The trial court 

authored an opinion, which stated, inter alia, that “for each parent to be on 

equal footing in providing religious instruction for [Child], [Child] should not 

be placed in a Catholic curriculum particularly at the parish where the 

baptism incident took place.” Trial Court Opinion, 4/20/2011, at 4.8

On September 9, 2013, Father enrolled Child in a program that “is a 

prerequisite to [Child] receiving Holy Communion or being an altar server.” 

Trial Court Opinion, 11/20/2013, at 2-3. Father did not inform Mother of 

Child’s enrollment in this program. On October 9, 2013, Father filed a 

 

8

Father subsequently discontinued that appeal voluntarily.
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petition for special relief to allow Child to practice his religion with Father. 

The trial court denied Father’s petition. 

On May 9, 2014, Mother filed a petition for contempt in which she 

averred that Child “is now enrolled in self-study classes necessary to 

participate in First Holy Communion.” Amended Petition for Contempt and 

Complaint to Modify Custody, 5/9/2014, at ¶ 17. Mother requested the trial 

court to preclude Child from participating in First Holy Communion “in home, 

privately or during mass, ... in any way shape or manner.” Id. at ¶ 18. 

Father responded that he “enrolled [Child] to participate in [PREP] 

during only Father’s custodial weeks, with no impact to Mother’s custodial 

time.” Father’s Answer to Amended Petition for Contempt, 6/3/2014, at 

¶ 15. Father argued that this was not a violation of the prior custody order. 

Thus, the underlying facts are not in dispute; rather, the issue before the 

trial court was whether it was a violation of the custody order for Child to be 

enrolled in PREP even if it did not impede Mother’s custodial time. The trial 

court modified the custody order to add the following with respect to Child’s 

religious upbringing:

g) Both parents are prohibited from enrolling [Child] in any 

catechism or religious training without the written or e-mailed

consent of the other parent or further Order of Court.

h) [Child] is precluded from receiving communion at any 

religious service without the written or e-mailed consent of each 

parent not less than 48 hours prior to the religious service.

Trial Court Order, 7/7/2015, at 19-20.
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We now turn to an examination of the case law in this area. Both 

Father and the trial court point to this Court’s holding in Zummo v. 

Zummo, 574 A.2d 1130 (Pa. Super. 1990). See Father’s Brief at 15; Trial 

Court Opinion, 8/26/2015, at 10.9 

In Zummo, Mother was Jewish and Father was Catholic, and at the 

time of the divorce, the children were eight, four, and three years’ old. 

During the marriage, the family participated fully in Judaism. While the 

father participated in Catholicism “sporadically,” the children were not 

exposed to it in any way. Id. at 1141 (emphasis eliminated). When the 

parents separated, the father stopped bringing the oldest child to religious 

school during his custodial time (the other two children were not yet old 

enough to start). The parents otherwise agreed on much in the way of 

custody, but asked the trial court to determine “to what extent father should 

be obligated to see to the attendance of the children at Jewish services 

during his visitation periods and whether father should be permitted to take 

the children to Roman Catholic services to the extent he attends on his 

visitation weekends.” Id. (emphasis eliminated). The trial court held that 

Father must take the children to religious school even during his periods of 

 

9 We observe that Zummo’s precedential value is in question. In this threejudge panel decision, one judge wrote for the majority, one concurred in the 

result, and one dissented. This court has cited it as authoritative. See 

Hicks v. Hicks, 868 A.2d 1245 (Pa. Super. 2005). Our Supreme Court has 

noted that the lead opinion in Zummo did not garner another vote, thus 

depriving it of precedential effect. Shepp v. Shepp, 906 A.2d 1165, 1178 

n.6 (Pa. 2006)(Baer, J. dissenting).
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partial custody; however, Father was not permitted to take the children to 

“religious services contrary to the Jewish faith[.]” Id. at 1142. Father 

appealed from that order.

On appeal, this Court held “that each parent must be free to provide 

religious exposure and instruction, as that parent sees fit, during any and all 

period of legal custody or visitation without restriction, unless the challenged 

beliefs or conduct of the parent are demonstrated to present a substantial 

threat of present or future, physical or emotional harm to the child in 

absence of the proposed restriction.” Id. at 1154-55. “[T]his standard 

requires proof of a ‘substantial threat’ rather than ‘some probability.’” Id. at 

1155. This Court noted further that “while the harm involved may be present 

or future harm, the speculative possibility of mere disquietude, 

disorientation, or confusion arising from exposure to ‘contradictory’ religions 

would be a patently insufficient ‘emotional harm’ to justify encroachment by

the government upon constitutional parental and religious rights of parents, 

even in the context of divorce. Id. Accordingly, while this Court affirmed the 

order with respect to the father’s requirement to take the children to 

religious school, it reversed with respect to taking the children to the father’s 

services.

In the instant matter, the trial court concluded that Zummo was 

inapplicable, reasoning that “Zummo applies in cases where one party is 
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prohibited from exposing his or her child to that party’s religion.” Trial Court 

Opinion, 8/26/2015, at 11.

In this case, both parents are expressly permitted to expose 

[Child] to their respective faiths, Catholic and [United Church of 

Christ], during their respective periods of custody. On the issue 

of religious training, such as Sunday school, the parties must 

agree on [Child] receiving training from one institution or the 

other. This is because, for example, a Catholic cannot receive 

communion in a Lutheran church. These denominations are two 

branches of Christianity, but advancement in one is to the 

exclusion of the other. Because the parties share legal custody, 

the decision to allow [Child] to receive religious sacraments in 

one faith or the other is a joint determination. If they cannot 

come to an agreement, the impact of the Court’s order is 

consistent with Zummo, to permit both parents to expose 

[Child] to their respective faiths. When [Child] reaches the age 

of majority, he would be in a position to determine for himself 

whether to receive additional sacraments such as Confirmation 

in either church. For the time being, the Court’s decision is to 

allow for appropriate exposure to the two faiths. To the extent 

the parties can agree on [Child’s] receipt of religious training, 

there are no legal obstacles preventing him from pursuing the 

appropriate educational and spiritual requirements of the faith 

upon which they agree.

Id. at 11-12.

Based on our review of the case law subsequent to Zummo, we 

disagree with the trial court’s interpretation. In Shepp, our Supreme Court 

weighed in on this issue. In that case, while both parties were Mormon, the 

father was excommunicated from the church because of his fundamentalist 

belief in polygamy. When the parties divorced, the father wished to teach 

their daughter about plural marriage, in the event that such a situation arose 

in his family. The mother testified that it was the father’s belief in polygamy 
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that caused the divorce. The trial court directed that the child continue her 

Mormon upbringing, but prohibited the father from teaching her about 

polygamy, particularly because the practice of polygamy would result in the 

commission of a crime.

On appeal, this Court affirmed the order of the trial court, reasoning 

that “that the teaching of plural marriage constituted a grave threat.” Id. at 

1173. However, our Supreme Court reversed that order, and offered the 

following:

By their very nature, decisions involving child custody must 

focus on the character and conduct of the individual parents and 

children involved. Accordingly, there may be instances where 

restricting a parent from teaching a child about a sincere 

religious belief involving illegal conduct is appropriate. However, 

we emphasize that the illegality of the proposed conduct on its 

own is not sufficient to warrant the restriction. Where, as in the 

instant matter, there is no finding that discussing such matters 

constitutes a grave threat of harm to the child, there is 

insufficient basis for the court to infringe on a parent’s 

constitutionally protected right to speak to a child about religion 

as he or she sees fit.

Id. at 1173-74. See also Hicks, supra (holding that a parent being upset 

at the prospects of the child being baptized in a different religion is not proof 

of a substantial risk of harm to the child so as to permit the court to 

interfere with a parent’s free exercise of religion). 

We now turn back to the instant matter. In this case, while each 

parent is permitted to expose Child to his or her respective religion, the trial 

court specifically limited the parent’s ability to educate Child in his or her 
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religion. Such a limitation is contrary to our case law where there is no 

indication of a “substantial threat of present or future, physical or emotional 

harm to the child.” Zummo, 574 A.2d at 1154. Accordingly, the trial court 

erred in concluding that Child was not permitted to be educated or 

participate in the sacraments at the Catholic church. Consistent with 

precedent, both parents shall be permitted to educate Child in and practice 

his or her religion with Child during their respective periods of custody, so 

long as there is no substantial threat of present or future physical or 

emotional harm to Child.

Finally, Father argues that the trial court erred with respect to Child’s 

participation in sports, as well as Father’s ability to coach him in those 

sports. Father’s Brief at 16-21. We provide the following background.

The parties have been squabbling over Child’s participation in sports 

and other extracurricular activities for a long time. On February 1, 2008, 

the trial court order required the parties to “consult with one another 

regarding any extracurricular activities that affect [Child’s] time with the 

other parent.” Trial Court Order, 2/1/2008, at 17-18.10 

On August 14, 2012, Father filed a petition for special relief to allow 

Child to play team soccer. This petition arose out of a dispute between 

Mother and Father about then six-year-old Child’s interest in playing team 

 

10 We note that at the time of this order, Child was only eighteen months 

old.
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soccer. On September 11, 2012, the trial court ordered that Child shall be 

enrolled on a soccer team. Subsequently, the trial court ordered that Child 

participate in organized baseball, basketball, and soccer only through “the 

public youth association for his geographic area.” Trial Court Opinion, 

3/27/2013, at 13. That order further provided that “the parties shall 

cooperate on enrollment and [Child’s] participation; and the parties shall 

only enroll [Child] in parochial or private club sports upon the parties’ 

written agreement.” Id.

In her amended petition for contempt and complaint to modify 

custody, Mother alleged on May 7, 2014, without her knowledge or consent, 

Father “unilaterally and covertly registered [Child] for a traveling soccer 

team whereby the parties’ [sic] would be required to travel with [Child] to 

Delaware County and other distant counties....” Amended Petition, 

5/9/2014, at ¶ 9.11 Mother averred that travel soccer was both more costly 

and more time consuming. Tryouts were to occur on May 7, 2014 and May 

12, 2014, during Mother’s custodial time. Mother immediately informed 

Father she was not in agreement with travel soccer, specifically because it 

 

11 The two types of youth soccer discussed here are recreational (rec) soccer 

and travel soccer. Rec soccer takes place only during the fall, and games 

and practices are all at a local field. Travel soccer requires both more time 

and more expense. There is a fall season and a spring season, and an 

optional indoor soccer (winter) season. Games are played in surrounding 

counties and overnight travel is a possibility. The level of instruction and 

competition is greater, as travel soccer teams are composed of players who 

are selected for the team by a tryout process.
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would interfere with Child’s other “court-ordered extracurricular activities 

such as basketball and baseball.” Id. at ¶ 12. Mother also asserted that it is 

her belief that Father is coaching Child in his extracurricular activities, and 

“is now utilizing his position as coach to thwart and undermine Mother’s 

parenting time with [Child].” Id. at ¶ 20. In particular, Father, as Child’s 

baseball coach, has scheduled baseball practices during Mother’s Monday 

and Wednesday dinner visits. 

On June 3, 2014, Father responded with a petition for contempt. In 

that petition, he set forth Mother’s repeated refusal to accommodate Child’s 

extracurricular activity needs. For example, he pointed out that during the 

2012 rec soccer season, Mother did not bring Child to the first game that 

took place during her custodial time. Father also averred that in 2013, 

Mother enrolled Child for spring baseball, but did not “mention Father’s 

desire to coach his son’s team, thereby removing Father from 

consideration.” Petition for Contempt, 6/3/2014, at ¶ 8. 

With respect to the sports at issue in 2014, Father claims he informed 

Mother of the soccer tryout process. Initially, he claimed she did not 

respond to his e-mails, then he acknowledged that she wrote to him that she 

was not in agreement with Child participating in the May 7, 2014 tryout. 

Father then wrote an e-mail to Mother stating, “Why are you not agreeable 

to supporting our son’s happiness?” Id. at ¶ 14. Both Mother and Father 

then sent the coach copies of custody orders to explain why Child should or 
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should not be permitted to play travel soccer. Mother did not take Child to 

the second day of tryouts; nevertheless, Child was selected for the team. 

Mother informed the organization that Child would not be participating. 

Father requested that the trial court order that Child be permitted to 

participate in 2014 travel soccer. 

 The trial court then heard extensive testimony about the differences 

between travel soccer and rec soccer. See N.T., 10/6/2014, at 35-137 

(testimony of David Dean, Child’s former rec soccer coach and current coach 

of the travel team); Id. at 121-142 (testimony of Marcus Arnfeldt, co-coach 

of the travel team). The trial court also heard testimony from friends of 

both parties about the parties’ behavior at sporting events. Finally, the trial 

court heard the thoughts of both Mother and Father on these issues. Based 

on the foregoing, the trial court ordered that by July 15 of each year, the 

“parents shall ascertain if [Child] wishes to participate in travel soccer.” Trial 

Court Order, 7/7/2015, at ¶ 17(f). The trial court provided further that if 

Child wished to participate in travel soccer, he would then not participate in 

baseball; however, Child could participate in any extracurricular activity 

upon written consent of each parent. Additionally, each parent is permitted 

to coach or lead one extracurricular activity per school year. Id. at ¶ 17(e). 

The trial court offered the following detailed rationale as to how it 

reached these conclusions:
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This Court has had extensive opportunity to observe both 

parties and has spoken to [Child], a very intelligent and 

articulate eight-year-old boy, in camera to receive his input. 

Father casts his various actions in a light designed to 

create the appearance that they are purely intended to advance 

the best interest of the child. He encourages [Child’s] 

participation in various sports activities and serves as coach. He 

spent an excessive amount of time offering testimony regarding 

the merits of a child playing on a team and experiencing sports. 

The Court accepted that testimony to the extent that there are 

certain benefits for a child playing sports, such as making 

friends, learning teamwork and other life lessons, and getting 

exercise. However, the order entered by Judge Ford permitting 

[Child] to play certain sports did [not] require [Child] to attend 

every practice, game, meet, etc.

While the Court has no doubt that [Father] enjoys serving 

as a coach for his son’s teams, the evidence demonstrated that 

coaching also advanced [Father’s] underlying efforts to intrude 

upon [Mother’s] custodial time. For example, the evidence 

showed that [Father] left a voice message for [Mother] 

demanding that she bring [Child] to a game on January 17, 2015 

after she e-mailed [Father] to advise him that [Child] had a 

birthday party to attend that day. This was during [Mother’s] 

custodial weekend. When questioned whether he would send a 

similar voicemail to any other parent on the team, [Father] 

responded, “I don’t because they’re not my children.” [Father’s] 

insistence that the applicable court order mandated that 

[Mother] bring [Child] to every game and practice was both a 

mischaracterization of Judge Ford’s order and a way by which to 

intrude upon [Mother’s] custodial time.

[Father’s] other argument with respect to sports is that 

[Child] should be permitted to live up to his athletic potential. 

[Father] characterizes anything shy of that as detrimental to 

[Child]. This issue manifested in the context of the parties’ 

dispute between enrolling [Child] in travel soccer as opposed to 

the non-traveling team. [Father] argued that [Child’s] level of 

skill at soccer was commensurate with the higher level of 

competition associated with the traveling team. [Mother] did not 

dispute this fact, but opposed [Child’s] enrollment in the travel 

team for other reasons, such as cost and the attendant time 
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commitment. [Father’s] sole focus on the surface is his belief 

that [Child] should live up to his athletic potential to the 

exclusion of other relevant considerations. However, underlying 

this is [Father’s] motivation to attain additional time with his son 

beyond that allocated to him in the custody order. [Father] also 

regularly attempts to classify any disagreement between him 

and [Mother] as a perceived violation of a court order.

[Mother], by contrast, places her focus on taking [Child] to 

various non-sports activities, such as Boy Scouts, local plays, 

and other activities. During her custody time, [Mother] 

prioritizes these activities over sports regardless of whether it 

means that [Child] is prevented by virtue of the schedule from 

participating in practices or games. [Mother] argued that 

[Child’s] schedule was overbooked between academic 

requirements and sports participations. Taking both parties’ 

positions into consideration, as well as [Child’s] well-reasoned 

preferences, the [court] fashioned an order that allowed [Child] 

to participate in sports without giving [Father] the leeway to 

infringe upon [Mother’s] custodial time.

Trial Court Opinion, 8/26/2015, at 13-14 (citations to notes of testimony 

omitted).

 On appeal, Father essentially argues that Child should be permitted to 

play two sports in the spring: soccer and baseball. Father’s Brief at 17. 

Father argues that the trial court’s order forces Child to make a choice 

“between playing spring baseball and relegating himself to recreational 

soccer in the fall; or playing soccer at the level he is actually qualified for (in 

the fall and spring) but skipping baseball.” Id. at 17-18. Father contends 

that unless Mother could prove that Child would be “harmed playing two 

sports in the spring[,]” the trial court erred in its order. Id. at 19. Father 

also states that the trial court erred in limiting the parties to leading or 
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coaching one activity per school year. Father claims that Child is not 

harmed by having Father coach; Mother can also attend all practices and 

games; and, Father suggests that he does not even spend extra time with 

Child when he is coaching “because he is preoccupied with coaching ten 

other little boys as well.” Id. at 20. 

 Despite Father’s protestations to the contrary, the trial court did not 

abuse its discretion in fashioning its order. Once again, Father’s arguments 

largely amount to contentions that the trial court should have interpreted 

certain evidence in his favor as being in the best interests of Child. The trial 

court worked to create an order taking into account the preferences of both 

parties, as well as Child, to create balance and ensure the best interests of 

the Child. Simply because Father continues to believe that Child should play 

travel soccer, along with any other sport Child wishes, does not mean the 

trial court erred or abused its discretion. Accordingly, we conclude that 

Father is not entitled to the relief he requests.

Before we conclude this memorandum, we feel compelled to point out 

that the record demonstrates that the order of shared legal custody may no 

longer be in Child’s best interests. Legal custody is defined as “[t]he right to 

make major decisions on behalf of the child, including, but not limited to, 

medical, religious and educational decisions.” 23 Pa.C.S. § 5322.

[I]n order to support a decision of shared [legal] custody, 

the court must make a determination that the parties are 

capable of cooperating, even minimally.... Such a finding is 
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essential to an award of shared custody. The rationale behind 

this requirement is that if the parties are unable to cooperate 

minimally shared custody is unworkable and inappropriate. 

However, no more than a finding of minimal cooperation is 

required based on the pragmatic realization that no couple, 

divorced or intact, agrees on every important decision in the 

upbringing of their children. If the court intends to award shared 

custody, then the order must be premised on the parties’ 

equality in decision-making. One of the predicates of a shared 

custody order is a finding by the court that the parties are 

capable of cooperating minimally.

Hill v. Hill, 619 A.2d 1086, 1089 (Pa. Super. 1993).

Instantly, the trial court itself points out over and over again the 

extent to which the parties cannot agree on even the most basic issues 

related to Child. The trial court recognizes that “[b]oth parties have 

engaged in efforts to undermine the other. They rarely are directly 

confrontational with one another, instead resorting to passive aggressive 

emails and other communications.” Trial Court Opinion, 8/26/2015, at 12. 

The trial court has attempted to maintain shared legal custody by creating 

lengthy custody orders which go into great detail about Child’s life in order 

to stem the tide of litigation that has surrounded these parties.

The record in this case reveals that such efforts have not worked. Just 

one month after the custody order at issue was entered, Mother filed a 

petition for contempt. A hearing was held on September 8, 2015 regarding 

several issues, including travel soccer and vacation time with Child. It is 

apparent that minimal cooperation does not exist between Mother and 

Father. While both purport to act in Child’s best interests, the reality is that 
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neither is doing so. By continuing the practice of filing petitions for 

contempt and special relief on a monthly basis, the parties are asking the 

trial court to act as Child’s legal custodian. This situation cannot and should 

not continue.

Based on the foregoing, and the issues before us, we affirm in part 

and reverse in part the July 7, 2015 order of court.

Order affirmed in part and reversed in part. Jurisdiction relinquished.

Judge Mundy concurs in the result.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2016