J-A04042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

PENNSYLVANIA

Appellee

v.

M.D.,

Appellant No. 1022 WDA 2015

Appeal from the Order Entered January 5, 2015

In the Court of Common Pleas of Butler County

Civil Division at No(s): F.C. NO. 12-90161-C

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

PENNSYLVANIA

Appellee

v.

M.D.,

Appellant No. 1165 WDA 2015

Appeal from the Order Entered June 29, 2015

In the Court of Common Pleas of Butler County

Civil Division at No(s): F.C. NO. 12-90161-C

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.: FILED MAY 2, 2016

M.D. (“Mother”) appeals from the custody orders entered by the trial 

court on January 5, 2015, and June 29, 2015. We affirm.

The trial court summarized the factual and procedural history of this 

case as follows:
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The parties hereto, [M.D. (“Mother”)] and [J.D.D. 

(“Father”)] are the natural parents of one child, [(“Child”) (Born 

in 2010)]. Mother and Father were married on June 10, 2010 

and separated on August 30, 2013. The divorce matter between 

the parties is still pending. Child is the only child of issue to the 

marriage. Mother also has four other children, [E.G.] (Age 17), 

[H.G.1] (Age 15), [H.G.2] (Age 13) and [A.G.] (Age 13), as a 

result of her previous relationship with [K.G.]. 

A complaint for custody was filed by Father on September 

13, 2013, averring that he is better able to provide a stable, 

structured, loving and caring environment for Child. Father also 

expressed concerns of leaving Child alone with Mother’s oldest 

son, [E.G.], due to his history of sexual abuse towards his sister, 

[H.G.2].1 Through an Order of Court dated November 18, 2013, 

the parties were ordered to undergo custody evaluations. . . .

1 An investigation was conducted by Armstrong 

County’s Children and Youth Services which resulted 

in a conclusion that the case was “substantiated.”

Numerous Petitions for Contempt and Special Relief have 

been presented to the court in the custody matter, as well as the 

parties’ divorce matter. There is also a history of cross-PFAs 

between the parties, which have all since been dismissed. Over 

the past year, the parties have engaged in constant litigation 

and have rarely been able to cooperate. The issues of 

contention have included discussing adult custody issues around 

Child, allegations of sexual abuse and how to deal with Child’s 

behavioral issues. Most recently, allegations of sexual abuse, 

which allege that [H.G.2] was sexually molesting Child, were 

made and presented to the Court. 

A Custody Trial was scheduled for August 25 and 26, 2014. 

After the presentation of a Motion to Continue to allow Butler 

County Children and Youth Services (“CYS”) to conduct their 

investigation [of the allegation of abuse by H.G.2 against Child], 

an Order of Court was issued on August 25, 2014 granting said 

Motion. The same Order of Court also directed Mother’s custody 

time to take place two times per week for two hours, either 

supervised or in a public setting. Mother was not permitted any 

overnights with Child. Lastly, the same Order prohibited 

Mother’s oldest son, [E.G.], from being around Child at any time, 
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for any reason. The five day custody trial was held on October 

27, 28, and 29, 2014, and November 24 & 25, 2014.1

Amended Memorandum Opinion and Order of Court, 6/29/15, at 1-2.

Following trial, an order of court dated January 2, 2015 and entered 

January 5, 2015, was issued granting Mother and Father shared legal 

custody. Father was awarded primary physical custody with Mother having 

visitation. On January 15, 2015, Father filed a petition for special relief, 

which resulted in change of exchange times for Mother’s custodial weekends. 

Mother filed a motion for reconsideration that was dated January 16, 2015, 

and was entered on the docket on February 4, 2015. 

Mother filed a notice of appeal and a Pa.R.A.P. 1925(b) statement on 

February 4, 2015. On the same day, the trial court entered an order 

granting Mother’s motion for reconsideration of the January 5, 2015 order, 

____________________________________________

1 The trial court opinion also included, inter alia, the following relevant 

factor:

A new allegation was made on November 4, 2014 alleging 

Child had been sexually abused by [H.G.2]. This report was 

made by Child’s [therapist] after Child revealed [H.G.2] had 

contact with Child’s “private parts”. There is no evidence as to 

whether this was a new act or the report of a prior act. [CYS 

intake investigator] testified that CYS currently has an open case 

with the family, and is developing a Family Service Plan. [The 

investigator] recommended that Child continue with therapy . . . 

and Mother, Father, and all the children have a psychosexual 

evaluation. Furthermore, she recommended that [Child] and 

[H.G.2] have no further contact until this is “worked out”.

Amended Memorandum Opinion and Order of Court, 6/29/15, at 5. 
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and scheduling argument thereon for February 19, 2015. Father’s counsel 

submitted a proposal for holiday custody on January 28, 2015, and Mother’s 

counsel submitted a holiday custody proposal on February 9, 2015. 

While no order on the reconsideration motion was entered, an 

amended memorandum opinion and order of court was docketed on June 29, 

2015. The amended memorandum opinion and order included a holiday 

schedule, which adopted Father’s proposal. 

By order dated June 30, 2015 and entered July 6, 2015, the trial court 

addressed Mother’s motion for reconsideration, stating that it had erred in 

attaching an unedited draft of procedural history and findings of fact to the 

January 5, 2015 order. The trial court granted Mother’s motion for 

reconsideration, in part, to revise the findings of fact that the trial court 

agreed were in error. The trial court therein acknowledged four errors to the 

findings of fact and these corrections were reflected in the June 29, 2015 

amended memorandum opinion and order of court. On July 29, 2015, 

Mother filed an appeal from the June 29, 2015 order2and opinion. Mother 

____________________________________________

2 Mother acknowledged in her notice of appeal at 1165 WDA 2015, from the 

June 29, 2015 order, that the appeal at 1022 WDA 2015, from the order 

entered January 5, 2015, was then pending. Mother indicated that the 

motion for reconsideration filed at 1022 WDA 2015 was never ruled on and 

therefore the order entered January 5, 2015 became final on June 4, 2015. 

Mother asserted that out of an abundance of caution and the fact that the 

June 29, 2015 order addressed holidays for the first time, she filed the 

notice of appeal at 1165 WDA 2015. Notice of appeal, 1165 WDA 2015, 

7/29/15, at 1. 
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also filed a Pa.R.A.P. 1925(b) statement on the same date. The trial court 

issued opinions pursuant to Pa.R.A.P. 1925(a) in both appeals. Upon 

application by Mother, this Court consolidated the two appeals by order filed 

August 12, 2015. Order, 8/12/15.

Mother presents the following issues for our review:

I. Whether the trial court’s Memorandum Opinions and 

Orders of Court dated January 2, 2015 and June 29, 2015 are 

replete with erroneous statements of fact; with the result that 

there is not competent evidence to support the legal conclusions 

of the trial court, such that the Honorable Trial Court abused its 

discretion and erred as a matter of law in its review and 

evaluation of the evidence presented and the application of the 

custody factors to such evidence.

II. Whether the Honorable Trial Court erred and abused its 

discretion in limiting Mother’s custody of the Child to only every 

other weekend where Mother was the Child’s primary physical 

custodian from the parties’ separation in August 2013 until 

Father presented his Petition containing allegations on August 

21, 2014 four days prior to the date the custody trial was to 

commence, and the Trial Court’s stated purpose of safety could 

be met with a far less restrictive arrangement, as Mother has 

custody of her older children on a week-on, week-off basis.

III. Whether the Trial Court abused its discretion, erred as 

a matter of law, and violated Mother’s due process where it 

limited Mother’s custody time to every other weekend when it 

made no finding that additional contact with Mother alone gives 

rise to a reasonable suspicion that the Child has been abused by 

Mother or is in imminent danger of abuse by Mother.

IV. Whether the Trial Court abused its discretion, erred as 

a matter of law, and violated Mother’s due process where it 

eliminated all contact between siblings where it made no finding 

that contact between the Child and Mother’s two younger sons 

gives rise to a reasonable suspicion that the Child has been 

abused by those other children or is in imminent danger of abuse 

if only Mother and her two younger sons are present.
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V. Whether the Trial Court abused its discretion, erred as 

a matter of law, and violated Mother’s due process where it 

eliminated all contact between siblings, where it made no inquiry 

into the availability of safe contact between the Child and her 

siblings.

VI. Whether the decision of the Honorable Trial Court to 

limit Mother’s custody time with the Child to every other 

weekend and to prohibit contact between the Child and her two 

siblings against whom no allegations were made was not in the 

Child’s best interest.

VII. Whether the Trial Court abused its discretion, erred 

as a matter of law, and violated Mother’s due process where it 

eliminated all contact between Child and her half-siblings, E.G. 

and [H.G.2], where it made no inquiry into the availability of 

safe contact between the Child and those two siblings.

VIII. Whether the Trial Court erred and abused its 

discretion when it correctly ruled that the parties are capable of 

sufficient communication to share legal custody but then ruled 

that their conflict prohibits shared physical custody.

IX. Whether the Trial Court abused its discretion and 

erred as a matter of law, when it ordered each party to sign a 

release for the therapist for each of the parties including the 

Child, to allow each therapist to communicate with the others as 

this is a violation of the fundamental right to privacy and the 

patient- therapist privilege.

X. Whether the Honorable Trial Court erred and abused its 

discretion in adopting wholesale the holiday schedule proffered 

by Father where the schedule proposed by Mother was 

specifically tailored so that Mother’s holiday time with Child 

would not overlap with the holidays when Mother has custody of 

her children from a prior relationship, while the schedule 

proposed by Father effectively eliminates Mother’s opportunity to 

exercise holiday custody if custody of her children from a prior 

relationship coincides with the holiday granted her in the Trial 

Court’s Order.

Mother’s Brief at 18-21.
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Initially, we observe that because the custody hearings in this matter 

were held in October and November of 2014, the Child Custody Act is 

applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding 

when custody evidentiary proceeding commences on or after the effective 

date of the Act, January 24, 2011, the provisions of the Act apply).

In custody cases, our standard of review is as follows:

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.

R.L.P. v. R.F.M., 110 A.3d 201, 207–208 (Pa. Super. 2015) (quoting 

C.R.F., 45 A.3d at 443).

We have stated: 

[T]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

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

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
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In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we 

stated the following regarding an abuse of discretion standard.

Although we are given a broad power of review, we are 

constrained by an abuse of discretion standard when evaluating 

the court’s order. An abuse of discretion is not merely an error 

of judgment, but if the court’s judgment is manifestly 

unreasonable as shown by the evidence of record, discretion is 

abused. An abuse of discretion is also made out where it 

appears from a review of the record that there is no evidence to 

support the court’s findings or that there is a capricious disbelief 

of evidence.

Id. at 18–19 (quotation and citations omitted).

In her first issue, Mother asserts that the trial court’s memorandum 

opinions and orders entered January 5, 2015 and June 29, 2015, are replete 

with erroneous statements of fact. Mother’s Brief at 33. As a result, Mother 

argues, there is not competent evidence supporting the legal conclusions of 

the trial court. Id. Thus, she maintains the trial court abused its discretion 

and erred as a matter of law in its review and evaluation of the evidence 

presented and the application of the custody factors to such evidence. Id. 

In her brief, Mother reproduces language from her motion for 

reconsideration in which she specifies nine alleged factual errors made by 

the trial court. Id. at 34-35. Mother acknowledges that in its order dated 

June 30, 2015, the trial court stated that the “‘Procedural History and 

Findings of Fact’ attached to this Court’s Order dated January 2, 2015, was 

an unedited draft that, upon review, should not have been attached to the 

Order.” Id. at 35. Despite the trial court’s correction of four specific 
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findings, Mother argues that the trial court made multiple errors that 

evidence a bias against Mother. Id. at 36, 41. 

We first note that despite claiming in her brief that nine specific errors 

were made by the trial court, Mother makes the following vague claim 

regarding these errors in her Pa.R.A.P. 1925(b) statement:

1. The Honorable Trial Court’s Amended Memorandum 

Opinion and Order of Court dated June 29, 2015 is replete with 

erroneous statements of fact and thus, there is not competent 

evidence to support the legal conclusions of the trial court.

2. In light of the number of factual errors set forth in the 

Amended Memorandum Opinion and Order of Court dated June 

29, 2015, it is clear the Honorable Trial Court abused its 

discretion, erred as a matter of law, and did not afford Mother 

due process in its review and evaluation of the evidence 

presented and the application of the custody factors to such 

evidence.

Concise Statement of Errors Complained of on Appeal, 7/29/15, at 2.3

“An appellant’s failure to include an issue in his Rule 1925(b) 

statement waives that issue for purposes of appellate review.” Lineberger 

v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006). Moreover, this Court has 

stated the following regarding vague or overly broad statements:

When a court has to guess what issues an appellant is appealing, 

that is not enough for meaningful review. When an appellant 

fails adequately to identify in a concise manner the issues sought 

____________________________________________

3 We note that Mother included the identical language in her Pa.R.A.P. 

1925(b) statement filed in her appeal at 1022 WDA 2015, with the exception 

of reference made to the memorandum opinion and order of court entered 

January 5, 2015. Concise Statement of Errors complained of on Appeal, 

7/6/15, at 2. 
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to be pursued on appeal, the trial court is impeded in its 

preparation of a legal analysis which is pertinent to those issues.

In other words, a Concise Statement which is too vague to allow 

the court to identify the issues raised on appeal is the functional 

equivalent of no Concise Statement at all. While 

[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)] 

and its progeny have generally involved situations where an 

appellant completely fails to mention an issue in his Concise 

Statement, for the reasons set forth above we conclude that 

Lord should also apply to Concise Statements which are so 

vague as to prevent the court from identifying the issue to be 

raised on appeal. 

Id. 

Indeed, in its Pa.R.A.P. 1925(a) opinion, the trial court expressed its 

inability to fully address Mother’s claim due to her failure to set forth in her 

Pa.R.A.P. 1925(b) statement the specific “factual errors” she was alleging. 

Trial Court Opinion, 9/17/15, at 2. Because Mother’s vague Pa.R.A.P. 

1925(b) statement has hampered appellate review, we find her first issue 

waived. 

Moreover, we note the trial court’s explanation regarding its correction 

of the findings of fact:

The Memorandum Opinion and Order of Court is not 

“replete with erroneous statements of fact.” The “Procedural 

History of Findings of Fact” attached to the Court’s January 2, 

2015 Memorandum Opinion was an unedited preliminary draft 

that, upon review, should not have been the final copy attached 

to the Order. However, upon review of the thirteen and a half 

pages, the Court found four “errors,” most of which were clerical. 

. . . The Court did not base any decision on the above factual 

“errors,” but notes that they were clerical errors only, and that 

the Court’s legal analysis and decision were based upon the 

Court’s personal recollection of the facts which was consistent 
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with the record. None of the four “errors” were considered or 

given any weight in the Court’s decision.

Trial Court Opinion, 9/17/15, at 1-2.

Thus, the trial court reviewed its Findings for errors, and subsequently 

identified and corrected those errors as reflected in its June 29, 2015 

amended memorandum opinion and order of court. Additionally, the trial 

court explained that its legal analysis and decision were based upon the trial 

court’s personal recollection of the facts that were consistent with the 

record. Accordingly, we discern no abuse of discretion by the trial court. 

Mother is entitled to no relief on this claim. 

In issues II through VII, Mother asserts various challenges to the 

custodial arrangement created by the trial court. Mother’s Brief at 41-48. 

Mother summarized her argument on these issues as follows:

The Trial Court erred and abused its discretion in limiting 

the Mother’s custody time to two days out of every fourteen, 

with twelve days intervening. One of the Trial Court’s rationale’s 

for so restricting Mother’s custody time was to ensure the Child’s 

safety due to concerns regarding her interactions with her older 

siblings, Mother’s children from a prior relationship. Any safety 

concerns of the Trial Court could have been assuaged with a far 

less restrictive regime, where Mother has custody of her older 

children on a week-on, week-off basis and the failure to 

implement a less restrictive custody schedule infringes on 

Mother’s fundamental interest in the care and welfare of her 

child. The Trial Court has also contradicted its own statement 

that it did not intend to restrict custody time, but rather to “give 

each family member as much time with the child, in a safe 

environment, as possible.”

The Trial Court erred by limiting Mother’s custody time to 

every other weekend, where there was no finding that Mother 

was a risk to the Child, and by limiting or eliminating sibling 
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contact. The Trial Court failed to explore other options in this 

exceptionally “hard” case, electing instead to allow the unity of 

the family to suffer.

Mother’s Brief at 30-31. Additionally, Mother specifically argues in her 

second issue that the trial court erred and abused its discretion in limiting 

Mother’s custody of Child to only every other weekend where Mother was 

Child’s primary physical custodian from the time the parties separated in 

August 2013 until August 21, 2014, when Father presented his petition. 

Mother’s Brief at 41. 

With any custody case decided under the Act, the paramount concern 

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. 

Section 5338 of the Act provides that upon petition, a trial court may modify 

a custody order if it serves the best interests of the child. 23 Pa.C.S. 

§ 5338(a). The best interest factors that the trial court must consider are 

set forth at 23 Pa.C.S. § 5328. E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa. 

Super. 2011).

Section 5328(a) of the Act provides as follows:

§ 5328. Factors to consider when awarding custody

(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)(1) and 

(2) (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.

(13) The level of conflict between the parties and the 

willingness and ability of the parties to cooperate with one 
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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. § 5328.4

In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained:

“All of the factors listed in section 5328(a) 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 

in original). . . . The record must be clear on appeal that the 

trial court considered all the factors. Id.

Section 5323(d) provides that a trial court “shall delineate 

the reasons for its decision on the record or in open court or in a 

written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally, 

“section 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328 custody] 

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

of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), 

appeal denied, 70 A.3d 808 (Pa. 2013). Section 5323(d) applies 

to cases involving custody and relocation. A.M.S. v. M.R.C., 70 

A.3d 830, 835 (Pa. Super. 2013).

____________________________________________

4

 Effective January 1, 2014, the statute was amended to include an 

additional factor at 23 Pa.C.S. § 5328(a)(2.1), providing for consideration of 

child abuse and involvement with child protective services. Although 

applicable at the time of the custody hearings in this matter, there was no 

evidence that would have required the trial court’s consideration of this

factor as there was no claim regarding parental abuse. 
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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 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), appeal 

denied, 68 A.3d 909 (Pa. 2013). A court’s explanation of 

reasons for its decision, which adequately addresses the relevant 

factors, complies with Section 5323(d). Id.

A.V., 87 A.3d at 822–823.

In the present appeal, the trial court thoroughly discussed the sixteen 

custody best-interest factors in its opinion and order. Amended 

Memorandum Opinion and Order of Court, 6/29/15, at 16-29. We decline to 

duplicate that lengthy recitation here. A review of the record reflects that 

the trial court’s analysis and conclusions regarding those factors are 

supported by the evidence of record. Thus, based on those determinations, 

we conclude that the trial court did not err or abuse its discretion in crafting 

the present custody arrangement and did so with Child’s best interest in 

mind.

Indeed, the trial court’s studied consideration of this matter is 

reflected in the following statement it made to the parties:

I’m going to be very honest with [you] in that because of the 

Court’s Findings of Facts in this case, from a practical standpoint, 

this is one of the hardest orders to draft. We have so many 

children. We have children that are not under this Court’s 

jurisdiction. And we have at least two children who have direct 

evidence, at least as my Findings go, where we have either 

sexual abuse or attempt at sexual abuse or concerns of sexual 

abuse at the very least. I mean -- so, I’m going to be honest 

with you: You are not going to get an Order that addresses it 

all. I just can’t. I mean, I went back for weeks and weeks, 

looking at: How do I let the children have time with the siblings 
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who are not involved with the two sexual issues, and how -- you 

know, how does Mom’s extended family get time with the – I 

mean, it is just nearly impossible to think of all the potential 

scenarios that could exist. And I have two parents who are 

going to need to be micromanaged. There is no question. 

Neither one of them are capable of taking a big picture and 

applying it appropriately and in the best interest of the children 

without micromanaging. So -- with a case that is very difficult to 

micromanage. So, I don’t doubt that you’re going to walk away 

with some questions . . . . You are going to walk away going, 

What do we do here? And I feel the same frustration that you 

do, and I’m sure it’s difficult in discussing it with your clients. I 

just want you to understand my mindset and where I’m coming 

from. 

My primary consideration will be to do as much as is 

humanly possible, what is [Child’s] best interest, balancing the 

interest of safety and emotional security with the interests of her 

not feeling like she’s the weird one, out of place, because she 

can’t be with some of her – I mean, there is no good answer 

here -- I’m just going to be honest – unless, or, in my hope, that 

through therapy some of these issues can be addressed. The 

Court can’t solve them. I can only try to draft an Order that, as 

much as possible, puts [Child’s] best interest with those 

balances.

N.T., 2/19/15, at 32-34. 

Furthermore, with regard to Mother’s argument that the trial court 

erred by failing to afford proper consideration to her role as Child’s primary 

caretaker, we note that this Court has reasoned that the Act indicates that 

the only factors given weighted consideration are factors that affect the 

safety of the child. M.J.M., 63 A.3d at 338. The M.J.M. panel explained:

The language of [the Act] is clear. It explicitly provides 

that all relevant factors shall be considered by the trial court, 

and the only factors that should be given “weighted 

consideration” are factors that “affect the safety of the child[.]” 

Id. “When the words of a statute are clear and free from all 

ambiguity, the letter of it is not to be disregarded under the 
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pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also 

Ario v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194, 

1201 (2009). If the Pennsylvania Legislature intended for extra 

consideration be given to one parent because of his or her role 

as the primary caretaker, it would have included language to 

that effect. Stated another way, the absence of such 

language indicates that our Legislature has rejected the 

notion that in analyzing both parents, additional 

consideration should be given to one because he or she 

has been the primary caretaker.

Furthermore, the consideration the primary caretaker 

doctrine sought to address (which parent spent more time 

providing day-to-day care for a young child) is addressed 

implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§ 

5328(a)(3) (“The parental duties performed by each party on 

behalf of the child.”); (a)(4) (“The need for stability and 

continuity in the child’s education, family life and community 

life.”). The considerations embraced by the primary caretaker 

doctrine have been woven into the statutory factors, such that 

they have become part and parcel of the mandatory inquiry.

In short, the Legislature has created a mandatory inquiry 

to aid trial courts in determining the best interests of the child in 

a custody dispute. In doing so, it articulated the components of 

a parent’s obligations and characteristics, and a child’s needs 

and welfare, that must be incorporated in the trial court’s 

custody decision where the parents are incapable of doing so on 

their own. In setting forth these factors, the Legislature has 

required the trial court to give additional weight only to factors

that it finds affect the safety of the child. This language is clear, 

and we cannot expand it to provide that a trial court must also 

give weighted consideration to a party’s role as primary 

caretaker. We simply cannot graft the judicially-created primary 

caretaker doctrine on to the inquiry that the Legislature has 

established, and so we conclude that the primary caretaker 

doctrine, insofar as it required positive emphasis on the primary 

caretaker’s status, is no longer viable.

We hasten to add that this conclusion does not mean that 

a trial court cannot consider a parent’s role as the primary 

caretaker when engaging in the statutorily-guided inquiry. As 

discussed above, a trial court will necessarily consider a parent’s 

status as a primary caretaker implicitly as it considers the 
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section 5328(a) factors, and to the extent the trial court finds it 

necessary to explicitly consider one parent’s role as the primary 

caretaker, it is free to do so under subsection (a)(16). 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. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 

2010) (“In reviewing a custody order . . . 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.”). Our decision here 

does not change that.

M.J.M., 63 A.3d at 338–339 (footnote omitted) (emphasis added).

Based on this Court’s discussion of the primary caretaker doctrine in 

M.J.M., we find no merit to Mother’s contention regarding the weight the 

trial court afforded the fact that Mother was previously Child’s primary 

caretaker. We find that the trial court carefully considered all section 

5328(a) factors, that the trial court’s conclusions are not unreasonable as 

shown by the evidence of record, and we find no error of law on the part of 

the trial court. We, therefore, will not disturb the trial court’s determination. 

C.R.F., 45 A.3d at 443. 

In issue VIII, Mother asserts that the trial court erred and abused its 

discretion in ruling that the conflict between the parties prohibited shared 

physical custody. Mother’s Brief at 48. Mother seems to be arguing that 

this determination is not supported by the trial court’s other findings, 

specifically, the trial court’s conclusion that the parties are capable of 
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communication sufficient to allow for shared legal custody. Id.5 Mother 

argues that since the trial court found that the parties can share legal 

custody, there should be no reason their conflict should prevent shared 

physical custody. Id. at 52. 

In issuing its custody order, the trial court made the following 

determination in considering factor 5328(a)(13): 6

The parties are able to communicate at a minimum level, at 

best. They constantly point the finger at the other party and fail 

to look at themselves for any kind of blame. There is an 

extremely high conflict among the parties. Co-parenting 

counseling as well as individual counseling would help them get 

through their communication issues with regards to Child. The 

parties should also keep their communication to the limited 

nature of Child and her needs and well-being. At this point in 

time, the Court believes the parties are capable of 

communicating on a minimal level so that shared legal custody is 

possible, however, their conflict prohibits shared physical 

custody.

Amended Memorandum Opinion and Order of Court, 6/29/15, at 28. 

Additionally, in its Pa.R.A.P. 1925(a) opinion, the trial court provided 

the following analysis in response to this issue:

____________________________________________

5 Despite identifying this as the issue, Mother focuses much of her discussion 

in this section of her brief on how the change in Mother’s custodial time 

would affect Child, and the fact that Mother previously had primary physical 

custody of Child. Mother’s Brief at 48-51. 

6 This factor requires that the court consider “[t]he 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.” 23 

Pa.C.S. § 5328(a)(13).
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The parties are able to communicate, however minimally 

due to their hostility toward the other. While the level of 

communication may impact sole physical custody, there was no 

evidence to support anything but shared legal custody. In 

determining whether to award shared legal custody, the trial 

court must consider the following factors: whether both parents 

are fit, capable of making reasonable child rearing decisions, and 

willing and able to provide love and care for their children, 

whether both parents evidence a continuing desire for active 

involvement in the child’s life, whether the child recognizes both 

parents as a source of security and love; and whether a minimal 

degree of cooperation between the parents is possible. . . . . An 

award of shared legal custody is appropriate where the parties 

have not shown an inability to cooperate to a minimal degree or 

to isolate their personal conflicts from their role as parents. . . . 

The Court considered all of the above enumerated factors and 

the parties’ ability to communicate in awarding shared legal 

custody.

Due to the serious nature of the alleged abuse, Mother’s 

inability or unwillingness to provide reasonable boundaries 

between her children so as to maintain a safe environment for 

Child, and the Court’s optimism that Mother would seek 

counseling, the Court found that it would be in Child’s best 

interest for Mother and Father to have shared legal custody. 

Prospectively it is important that each parent be able to 

participate in and have input in medical, emotional and 

educational decisions for Child.

Trial Court Opinion, 9/17/15, at 5-6.

The trial court’s determination is supported by the evidence of record 

and is not unreasonable in light of that evidence. The trial court was the 

sole judge of the credibility of the parties and the level of hostility exhibited 

by the parties towards each other. We decline Mother’s invitation to secondguess those determinations by the trial court. As we have noted:

[t]he 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 
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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.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002). Because the trial 

court’s determination on this issue and the overall custody arrangement is 

reasonable and focused on the best interests of Child, we cannot agree that 

the trial court erred or abused its discretion in making this determination. 

Mother’s claim fails.

In her next issue, Mother contends that the trial court abused its 

discretion and erred as a matter of law when it ordered each party to sign a 

release for their respective therapists so as to allow the therapists to 

communicate. Mother’s Brief at 54. Mother argues that such compulsion is 

a violation of the fundamental right to privacy and the patient-therapist 

privilege. Id. 

In response to this issue, the trial court provided the following 

explanation:

It was the Court’s understanding that counsel for all 

parties agreed that the parties and Child would be best served if 

the counselors/therapists could communicate for treatment 

purposes only. On February 19, 2015, Counsel for Mother 

confirmed that Mother was still agreeable to do so. The Court 

agrees that the Order of Court dated January 2, 2015, paragraph 

seven, should be amended to read “may” rather than “shall.”

Trial Court Opinion, 9/17/15 at 6. Moreover, the amended custody order of 

June 29, 2015, does not include a requirement that the parties sign releases 

for their respective therapists to allow for sharing of information. 
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In her appellate brief, Mother asserts the following: 

This issue was raised in light of the Trial Court’s 

Memorandum Opinion and Order dated January 2, 2015. In 

reviewing the Trial Court’s Amended Memorandum Opinion and 

Order entered June 29, 2015, . . ., it appears clear there was no 

intention to impose on any party’s privacy rights.

Mother’s Brief at 54.

Thus, there is no longer any requirement that the parties sign releases 

as part of the custody order, and Mother is no longer asserting a violation of 

her privacy rights. Accordingly, we need not discuss this issue further.

In her final issue, Mother asserts that the trial court erred and abused 

its discretion in adopting wholesale the holiday schedule proffered by Father. 

Mother’s Brief at 55. Mother maintains that the schedule she proposed was 

specifically tailored so that Mother’s holiday time with Child would not

overlap with the holidays when Mother has custody of her other children. 

Id. Mother contends that the schedule proposed by Father and adopted by 

the trial court effectively eliminates Mother’s opportunity to exercise holiday 

custody of Child if custody of her other children coincides with that 

designation. Id. 

The adoption of the holiday custody schedule by the trial court was 

made in light of and consideration of the overall custody determination of 

the trial court. As noted, the trial court thoroughly and carefully considered 

all of the sixteen factors listed under 23 Pa.C.S. § 5328(a)(1)-(16) in 

crafting the custody arrangement. The holiday schedule adopted by the trial 
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court is consistent with those considerations and the trial court’s focus on 

the best interests of Child. We cannot conclude that the trial court’s adopted 

holiday schedule is unreasonable. 

Furthermore, we note that in her brief, Mother asserts that she does 

not have a specific holiday schedule for custody of her other children. 

Mother’s Brief at 56 n.34. Therefore, we determine that Mother’s assertion 

that she will be effectively precluded from exercising any holiday custody of 

Child due to a coincidence of custody of her other children lacks merit. 

Accordingly, we cannot conclude that the trial court erred or abused its 

discretion in establishing the holiday custody schedule.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/2/2016