J-S14003-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.G.L., JR.

Appellant

v.

A.R.L.

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1644 MDA 2016

Appeal from the Order September 6, 2016

In the Court of Common Pleas of Berks County 

Civil Division at No(s): 05-5988 #3

BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 11, 2017

Appellant, L.G.L., Jr. (“Father”), appeals from the order entered in the 

Berks County Court of Common Pleas, which granted the petition for special 

relief of Appellee, A.R.L. (“Mother”) and also gave Mother sole legal and 

physical custody of the parties’ minor child, A.J.L. (“Child”). We vacate and 

remand for further proceedings. 

The trial court sets forth the relevant facts of this case as follows:

The parties...are the natural parents of [Child.] Father 

initiated a custody action on June 22, 2006, by filing a 

Complaint for Custody seeking primary physical custody of 

[C]hild. .... 

* * *

... Following a custody trial, [the court] entered a Final 

Custody Order dated September 20, 2007, granting the 

parties shared legal custody of [C]hild and granting Mother 
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primary physical custody of [C]hild. ... Father 

subsequently appealed to the Superior Court of 

Pennsylvania, which affirmed the trial court’s Order on 

[October 16], 2008. 

Most recently, the parties came to an impasse regarding 

counseling for [C]hild. Mother filed a Petition for Special 

Relief on August 26, 2016, seeking a court order 

authorizing her to obtain counseling for [C]hild without 

Father’s consent. ... 

* * *

Th[e c]ourt scheduled a hearing on Mother’s Petition for 

Special Relief on September 6, 2016. During an off-therecord discussion with counsel for the parties,1 it appeared 

to the [c]ourt that there was no factual dispute as to the 

allegations in Mother’s Petition. Accordingly, [the] [c]ourt 

entered [an] Order...granting Mother sole legal and primary 

physical custody of [C]hild and allowing Mother to obtain 

counseling for [C]hild without Father’s consent. 

1 As this matter was resolved off the record, there is 

no transcript of the proceedings. 

(Trial Court Opinion, filed November 1, 2016, at 1-3).1 Father filed a timely 

notice of appeal on September 29, 2016.2 

Father raises the following issues for our review:

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1 Nothing in the court’s order indicates the order was intended to be either 

temporary or without prejudice, as the court stated in its opinion. 

2

Father did not file a concise statement of errors contemporaneously with 

his notice of appeal per Pa.R.A.P. 1925(a)(2)(i). Rather, Father filed a Rule 

1925 concise statement on October 8, 2016. We decline to find waiver for 

Father’s technical noncompliance with the rules. See J.P. v. S.P., 991 A.2d 

904 (Pa.Super. 2010) (explaining failure to file concise statement with notice 

of appeal constitutes defective notice of appeal, which court can dispose of 

on case-by-case basis; declining to find waiver of issues for technical 

violation of procedural rules outlined in Rule 1925(a)(2)(i)). 
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DID THE TRIAL COURT ERR IN FAILING TO CONSIDER 

AND FULLY ANALYZE ALL OF THE 23 PA.C.S.[A.] § 5328(A) 

FACTORS IN RENDERING ITS DECISION TO CHANGE 

CUSTODY AS REQUIRED BY LAW?

DID THE TRIAL COURT ERR IN FAILING TO DELINEATE 

THE REASONS FOR ITS AWARD OF CUSTODY ON THE 

RECORD IN OPEN COURT OR IN A WRITTEN OPINION OR 

ORDER?

DID THE TRIAL COURT ERR IN ORDERING A CHANGE IN 

CUSTODY AT THE HEARING ON [MOTHER]’S PETITION FOR 

SPECIAL RELIEF, WHEREIN NEITHER PARTY RAISED, 

REQUESTED, OR CONTEMPLATED A CHANGE IN CUSTODY?

DID THE TRIAL COURT ERR BY NOT ALLOWING A FULL 

AND FAIR HEARING ON THE RECORD?

DID THE TRIAL COURT ABUSE ITS DISCRETION BY 

GRANTING [MOTHER] SOLE LEGAL AND PHYSICAL 

CUSTODY?

(Father’s Brief at 2). 

In his issues combined, Father argues the trial court failed to consider 

each of the custody factors under 23 Pa.C.S.A. § 5328(a) before it gave 

Mother sole legal and physical custody of Child. Father asserts the court 

also failed to delineate its reasons for granting Mother sole custody. Father 

maintains he had no notice that a change of custody was at issue because 

Mother did not request a change in custody in her petition. Father avers the 

court also failed to conduct a full evidentiary hearing on Mother’s petition; 

the parties did not present evidence and testimony. Father contends the 

court granted Mother’s petition and gave Mother sole custody of Child after 

only a discussion with counsel off the record. Father submits this record 
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does not support the trial court’s order. Father concludes this Court should 

vacate and remand for further proceedings. We agree. 

Our scope and standard of review of a custody order are as follows:

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

inferences made by the trial court from its findings of fact, 

nor must the reviewing court accept a finding that has no 

competent evidence to support it.... However, this broad 

scope of review does not vest in the reviewing court the 

duty or the privilege of making its own independent 

determination.... Thus, an appellate court is empowered to 

determine whether the trial court’s incontrovertible factual 

findings support its factual conclusions, but it may not 

interfere with those conclusions unless they are 

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

and thus, represent a gross abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (quoting R.M.G., Jr. v. 

F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009)). 

When deciding an award of custody, the court must conduct a 

thorough analysis of the best interests of the child based on the factors set 

forth in the Child Custody Act (“Act”). E.D. v. M.P., 33 A.3d 73 (Pa.Super. 

2011). “All of the factors listed in [S]ection 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 

court shall delineate the reasons for its decision on the record in open court 

or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). “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 
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(Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013). A 

court’s explanation of the reasons for its decision, which adequately 

addresses the relevant custody factors, complies with Section 5323(d). Id. 

A trial court “may not permanently modify a custody order without 

having a petition for modification before it.” Langendorfer v. Spearman, 

797 A.2d 303, 308 (Pa.Super. 2002). A party’s due process rights are 

violated where that party “had no notice that custody would be at issue in 

the proceedings,” after which the court modified custody. Id. at 309. 

Notice, in our adversarial process, ensures that each party 

is provided adequate opportunity to prepare and thereafter 

properly advocate its position, ultimately exposing all 

relevant factors from which the finder of fact may make an 

informed judgment. Without notice to the parties that 

custody [i]s at issue, the trial court [can]not assume that 

the parties ha[d] either sufficiently exposed the relevant 

facts or properly argued their significance. Consequently[, 

in the absence of notice,] neither we nor the trial court can 

make an informed, yet quintessentially crucial judgment as 

to whether it was in the best interests of the [child] 

involved to give sole legal [and physical] custody to [one 

party]. 

Id. (internal citations and quotations omitted). 

Instantly, Mother filed a petition for special relief, in which she sought 

court permission for Child to participate in counseling without Father’s 

consent. In her petition, Mother did not ask the court to modify the parties’ 

custody of Child. The court’s proceeding on Mother’s petition consisted of an 

off-the-record discussion with counsel; the parties presented no evidence 

and testimony. No transcript of the event exists. The court entered an 
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order that granted Mother’s petition and gave her sole legal and physical 

custody of Child, without providing its reasons for the order either on the 

record or in a written opinion. 

The record lacks support for the trial court’s order granting Mother’s 

petition. We have no transcript of the proceeding on Mother’s petition and 

no evidence to support Mother’s position. See A.V., supra.

3

 Further, the 

trial court erred when it gave Mother sole legal and physical custody, where 

Father had no notice that custody was at issue and Mother did not request in 

her petition that the court modify custody. See Lagendorfer, supra. Even 

if Father had been given proper notice concerning a requested change in 

custody, the court should have held a hearing, recited its rationale, and 

demonstrated it had considered all of the Section 5328(a) factors before it 

modified custody. See J.R.M., supra; 23 Pa.C.S.A. § 5323(d), supra. 

Based upon the foregoing, we vacate and remand for a full hearing on 

Mother’s petition for special relief.4 

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3

In its Rule 1925(a) opinion, the trial court acknowledged it erred when it 

failed to conduct a full evidentiary hearing on Mother’s petition and when it 

gave Mother sole custody of Child without providing its reasons. 

Accordingly, the court asked us to remand this case for a full and fair 

evidentiary hearing on Mother’s petition. 

4

If either party wishes to modify custody, that party must follow proper 

procedure and provide the other party with adequate notice of the custody 

modification request. See Langendorfer, supra. 
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Order vacated; case remanded. Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2017