J-S71030-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

K.L.O., IN THE SUPERIOR COURT OF

PENNSYLVANIA 

Appellee 

 v. 

S.K., 

Appellant No. 1055 WDA 2015 

Appeal from the Order entered June 8, 2015, 

in the Court of Common Pleas of Blair County, 

Civil Division, at No(s): 2013 GN 3679 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 08, 2016 

 

 S.K., a/k/a S.O.K. (“Mother”) appeals from the order entered on June 

8, 2015, that awarded the parties shared legal custody of their son, N.K.-O. 

(“Child”). The order also awarded primary custody of Child to K.L.O. 

(“Father”) and partial physical custody to Mother. We affirm. 

 The trial court set forth the procedural history of this appeal as 

follows: 

 The parties . . . are the parents of one (1) minor child, 

[Child, born in November of 2013.] The parents met in January 

2013 through the “Christian Mingle” on-line dating service and 

were married [in June of 2013.] The parties lived together for 

approximately one (1) month until [Father] filed for divorce [in 

July of 2013]. [Father] is self-employed in the asphalt sealing 

business. His primary season is June through October each 

year, and he is generally off November through May. [Mother] is 

currently not working due to recent knee surgery. She attends 

physical therapy three (3) times per week. It is her hope to 

return to her former employment cleaning houses. 
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 [Father] is currently forty-one (41) years of age and 

resides in his own home . . . [in] Roaring Spring, PA. He has 

resided there for five (5) years and describes his home as a 

ranch[-]style home, sitting on 31⁄2 acres, mostly wooded. The 

home has three (3) bedrooms and two (2) baths upstairs. There 

is a full bath downstairs. [Child] has his own bedroom and 

playroom. 

 [Mother] is 31 years of age and lives [in] Sproul, PA, 

where she has resided since on about October 1, 2014. She 

lives with her fiancé, [T.H.], her two (2) daughters from a prior 

relationship, [A.] (7 years of age), and [J.] (5 years of age), as 

well as [Child]. [T.H.] moved in with this family unit at the end 

of June, 2014. 

 There is a Custody Order in effect, dated February 4, 

2014, along with an Addendum dated June 17, 2014. Pursuant 

to the controlling orders of court, the parents share legal and 

physical custody, while [Mother] has primary residential custody 

of [Child]. [Father] has partial custody the first three (3) 

weekends each month from Friday, 9:00 a.m. until Saturday at 

3:00 p.m., and Friday [at] 9:00 a.m. until 3:00 p.m. the fourth 

weekend. The holidays are shared by mutual agreement. The 

parties share in transportation and normally exchange custody at 

the Sheetz [s]tore in McKee, PA. 

 [On June 16, 2014, Father] filed a request for a custody 

evidentiary hearing[1] as he is seeking primary, physical custody 

of the subject child. The first evidentiary hearing was held 

December 11, 2014, during which a former neighbor [of Mother, 

L.B.], testified on behalf of [Father]. [Father] also testified on 

his own behalf. [Mother] testified, however, due to time 

constraints, she was unable to complete her testimony. 

Therefore, a second evidentiary hearing was held June 1, 2015, 

during which [Mother] completed her testimony and her fiancé, 

[T.H.], testified as well. 

Trial Court Opinion and Order, 6/8/15, at 1–2 (internal citations omitted) 

(footnote added). The trial court entered its Opinion and Order on June 8, 

 

1

 Mother filed a complaint for custody on December 3, 2013, and Father 

filed a counter-complaint on December 6, 2013. 
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2015, discussing its findings related to the sixteen custody factors set forth 

in section 5328(a) of the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321–

5340. 

 On July 8, 2015, Mother filed a timely notice of appeal and concise 

statement of matters complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) and (b). 

 In her brief on appeal, Mother raises the following issues: 

A. Whether the lower court erred and abused its discretion by 

awarding primary physical custody to [Father], as there was 

insufficient evidence to show that [Father] had met his burden to 

show that modification was in the child’s best interests? 

B. Whether the lower court erred and abused its discretion by 

fashioning a custody order that separated the subject child from 

his siblings, as the evidence did not show a compelling reason to 

separate the children? 

C. Whether the lower court’s custody determination went against 

the weight of the evidence, as the majority of the evidence on 

the custody factors under 23 Pa.C.S.A. § 5328 militated in favor 

of a finding that primary physical custody should be awarded to 

[Mother]? 

D. Whether the lower court erred and abused its discretion by 

basing its decision on the past conduct of [Mother], as it was no 

longer applicable because there was no evidence it produced an 

ongoing negative effect on the child’s welfare? 

E. Whether the lower court erred and abused its discretion by 

failing to appropriately consider [Mother’s] role as the primary 

caretaker of the subject child in fashioning the new custody 

order? 

Mother’s Brief at 3. Mother combined her argument of issues A and C. 
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 Mother argues that the evidence presented supported a finding that 

she should have been awarded primary physical custody of Child. She 

asserts that Father did not produce sufficient evidence to support an award 

of primary physical custody. Mother also contends that the trial court erred 

by separating Child from her daughters, A. and J., who are his half-sisters, 

as the evidence showed that Child has a loving, affectionate, and beneficial 

relationship with them. Mother also argues that the trial court erred in 

basing its decision on her past conduct because it had no ongoing negative 

effect on him. Finally, Mother contends that in fashioning the custody order, 

the trial court erred and abused its discretion by failing to consider her role 

as Child’s primary caretaker. Mother’s Brief at 5.

 Initially, we observe that because the custody hearings in this matter 

were held in December of 2014 and June of 2015, the 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 
J-S71030-15 

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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: 

The 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)). 

 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). 

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

§ 5338. 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. 

(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. 
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(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 

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. § 5328.2

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

 

2

 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. 
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“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). 

 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 discussed the sixteen custody 

best-interest factors as follows: 

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

frequent and continuing contact between the child and 

another party? 

 The testimony established that [Mother] has been very 

open and willing to provide [Father] additional time over and 

above the partial custody schedule set forth in the Custody 

Order. For example, when [Mother] was working on Mondays, 

she agreed that [Father] could have the child from 8:45 a.m. 

until 4:30 or 5:00 p.m. Both parents testified that, generally, 

their communication is civil in nature and that they have been 

able to work out the holidays by mutual agreement as well as 
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make adjustments in the custody schedule. [Father] testified 

that he has been flexible with [Mother] relative to his schedule 

and gave some specific examples. We are satisfied that both 

parties have demonstrated a willingness to be flexible and both 

would encourage or promote continuing contact with the other 

party. 

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a

continued risk of harm to the child or an abused party and 

which party can better provide adequate physical 

safeguards and supervision of the child. 

 There is no evidence of any present or past abuse 

committed by [Father] to [Child] or any party. [Father] lives 

alone except when [Child] is in his custody. [Father] presented 

the testimony of [L.B.], who used to live next door to [Mother] 

and her family. She testified that she had observed [Mother] 

screaming, yelling and cursing at the children and observed her 

beating them with a wooden spoon. [L.B.] also testified that she 

has seen [T.H.], [Mother’s] fiancé, tap the girls’ genital areas 

when he corrects them. There was no evidence presented of 

any physical abuse between [Mother] and [T.H.] [T.H.] did 

acknowledge that he was scheduled for a hearing on Friday, June 

5, 2015[,] in the State of Minnesota relative to allegations that 

he threatened his wife and left a bruise on her leg. [T.H.] 

denied the allegations and indicated that the alleged incident 

occurred more than one (1) year ago. 

(3) The parental duties performed by each party on behalf 

of the child. 

 We find that both parents have performed parental duties 

concerning [Child] and that each parent is fully capable of 

performing such parental duties. It is also significant that both 

parents have attended the vast majority of [Child’s] medical 

appointments. 

 [Father] was present when the child was born at Nason 

Hospital, Roaring Spring, PA. [Child] did have medical issues 

upon birth and [Child] was transported by ambulance to the 

Conemaugh Hospital Neonatal intensive Care (NIC) Unit in 

Johnstown, PA. Each of the parents [was] with [Child] during 

the five (5) days that he was in the NIC Unit. 
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(4) The need for stability and continuity in the child’s 

education, family life and community life. 

 [Child] is only 11⁄2 years of age and, therefore, is not 

currently attending school. Both parents have been significantly 

involved in [Child’s] life since the date of his birth. [Mother] has 

served as primary custodian, however, [Father] has had 

significant partial custody rights. There is no doubt that both 

parents love [Child] and have formed a bond with him. We also 

accept that [Child] has formed a bond with his two half-sisters, 

[A. and J.] [Child] also has the benefit of having his parental 

grandparents and extended members of [Father’s] family in the 

area to serve as an additional support system into his future. 

 We accept [Mother’s] testimony that the last 11⁄2 years 

“has been the most stable time” in her life. [T.H.] seems to 

have helped stabilize her life. [Mother] and [T.H.] have lived 

together for a little over one (1) year and are interested in 

purchasing a larger home. They are looking at a home in 

Queen, PA, which is just over the Blair County Line in Bedford 

County, however, still within the Claysburg-Kimmel School 

District. The parents do live in different school districts, 

although [Child] has not yet started school. 

 [T.H.] has a Chemistry Degree and is employed as a

Station Chemist for the Homer City Generating Station, where he 

directs all activities for the environmental discharge of services 

along the Eastern seaboard. He has been employed in his 

current position for approximately three (3) years. His job 

brought him from Minnesota to Pennsylvania, originally residing 

in Indiana, PA, before relocating to Sproul, PA to be with 

[Mother]. [T.H.] has filed for divorce in Blair County, PA[,] 

against his current wife, to whom he has been married for 

fourteen years. [T.H.] has five adult children, three of whom he 

adopted during his first marriage, and the youngest two from a 

different marriage. There was no testimony as to whether he 

has maintained contact and communication with any of his 

children. 

 [T.H.] recognizes that he is not the biological father of 

[Child], and respects the role that [Father] has played and will 

continue to play in [Child’s] life. [T.H.] engages in activities with 

the children and helps the girls with their school work on a 

nightly basis. 
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(5) The availability of extended family. 

 [Father’s] parents live in Martinsburg, PA, approximately 9 

miles from his home. [Father] has extended family in the area, 

as he grew up in the Roaring Spring, Martinsburg area and is a 

graduate of Central High School. The paternal grandmother was 

employed as a Manager of the Housekeeping Department at the 

Village of Morrison’s Cove Retirement home. It was her 

intention to retire this past December and she would be 

available, along with other extended family members, to care for 

[Child] if and when [Father] was unavailable. 

 [Mother] is from the Carlisle area, where certain family 

members still reside. Her fiancé, [T.H.], moved to Pennsylvania 

from Minnesota and has no family in Pennsylvania. 

(6) The child’s sibling relationships. 

 [Father] has no other children, while [Mother] has two (2) 

daughters, [A.] (7 years of age) and [J.] (5 years of age) of her 

prior relationship with [M.D.]. [Mother] was formerly married to 

[M.D.], and she freely acknowledged that he was very abusive 

and controlling during their relationship. [A. and J.] are the halfsiblings of . . . [Child]. [Mother] described her two (2) 

daughters as “mother hens” and [stated] that they look out for 

[Child]. She further testified that there is a special bond 

between [J.] and [Child]. 

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

the child’s maturity and, judgment. 

 Not applicable as the subject child is only 11⁄2 years of age. 

(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. 

 There is no evidence that either party engages in any 

actions in an attempt to turn the child against the other parent, 

therefore, this is a non-factor. 
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(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? 

 Both of these parents love [Child]. We do find, however, 

that [Father] is the party more likely to maintain a loving, 

stable, consistent and nurturing relationship with [Child] 

adequate for the child’s emotional needs. 

 [Mother], unfortunately, has a significant past history. 

She has been married two (2) times. Her first marriage was to 

[M.D.], who has fathered five (5) children with [Mother]. Her 

parental rights to her first three (3) children — [M.] (now 13 

years of age), [C.] (11) and [L.] (8) — were involuntar[ily] 

terminated through a dependency proceeding in Dauphin 

County, PA. [Mother] met [M.D.] in 2001 when she was 17 

years of age and he was 21. [Mother’s] mother objected to their 

relationship[,] and [Mother] moved out of her mother’s home 

into the home of [M.D.’s] parents. Unfortunately, things did not 

work out there[,] and the couple went out on their own. 

[Mother] testified that after she became pregnant with [M.], 

[M.D.] became “nasty and controlling”. [C.] was born in 2003[,] 

and the parties married in April 2005. At that time, [Mother] 

testified that [M.D.] became “very physically abusive”, that there 

were “a lot of police calls” and that she was “transported by 

ambulance numerous times” but would eventually agree to drop 

the criminal charges filed against [M.D.] 

 [Mother] told of a “major incident” in 2007 when the police 

were called and [M.D.] was arrested and put in the Dauphin 

County Prison. She indicated that she refused to testify against 

him and, therefore, was charged with Perjury, Unsworn 

Falsification, Endangering Welfare of Children[,] and five (5) 

counts of Cruelty to Animals. She confirmed that [M.D.] was 

abusive toward the children. She eventually pled guilty to the 

Endangering Welfare and Animal Cruelty charges and received 

probation. 

 During the course of the investigation, the local Children, 

Youth & Services took custody of the children and directed that 

[Mother] attend parenting classes, obtain stable housing and 

employment, attend visits with the children at the foster 

parents[’,] and put other reunification services into effect. 

[Mother] unfortunately, chose to resume her relationship with 
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[M.D.], eventually resulting in reunification services ending and 

termination of parental rights decrees being entered against both 

parents. 

 [Mother] acknowledged that relative to the underlying CYS 

investigation wherein the Agency took custody and ultimately 

terminated the parents’ parental rights, . . . the allegations also 

included deplorable home conditions, including the smell of 

animal feces and urine. At that time, there were two (2) dogs 

and two (2) cats residing within the residence. 

 [M.D.] is also the biological father of [A. and J.]. [Mother] 

has full legal and physical custody of these two girls through a 

Dauphin County Order. 

 We specifically note [Mother’s] testimony concerning any 

continued contact between [A.], [J.,] and [M.D.] was 

inconsistent between our hearings. At our first hearing, 

[Mother] testified that [M.D.] does not have contact with the 

girls and that they have “no relationship” with him. She testified 

that [M.D.] has attempted to contact her, but that she ignores 

him. She did state that [M.D.] will text her on occasion and 

inquire about the girls, and she will respond since he is their 

father. 

 During our second hearing, [Mother] acknowledged that 

she has run into [M.D.] on a few occasions (she estimates 3 to 

4) in public locations and has allowed him to have contact with 

[A. and J.], although she also states that the “girls don’t know 

him as their father”. She indicated that [M.D.] currently lives in 

Carlisle, PA. 

 [Mother] dropped out of high school, but achieved her GED 

in 2009. She is currently taking on-line courses through 

Mississippi State University with the intent of achieving a 

Bachelor’s Degree in Operational and Broadcast Meteorology. 

She just completed her first term. 

 As we stated in paragraph 4 above, we do believe that the 

Mother’s fiancé, [T.H.], has been a stabilizing factor in her life. 

Absent [T.H.’s] involvement, we are not convinced that [Mother] 

could provide a safe, stable and structured home environment 

for her children, including specifically [Child] herein. 
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 During his testimony, [Father] stated when the parties 

were married and residing together, [Mother] was constantly in 

contact, including daily phone calls, with a [J.D.], a former 

boyfriend. [J.D.] is an over-the-road truck driver. [Father] 

testified about an interlude that they had in June, 2014 at a 

hotel near the Williams Grove Speedway. [Father] kept asking 

[Mother] where she was going [to] stay and indicated that he 

could not get much of an answer out of her. She then stated 

that she was going to meet a friend, whom she later identified as 

[J.D.] and admitted that he was going to give her money for a 

motel room. [Father] later went to the motel room and saw 

[J.D.’s] clothes and shoes in the bathroom. [Father] stated that 

he had a “sick feeling” and then was told that we [sic] was not 

allowed to stay in the motel room that night with his wife. 

 [Mother] denied any romantic tryst, however, we do not 

find her testimony credible. [Mother] acknowledged that she 

had a hard time “getting over” [J.D.] when she was with 

[Father] and that [J.D.] is “still a friend” of hers. 

 [Mother] has lived at several different addresses since 

September, 2010, when she separated from [M.D.] 

 [Mother] acknowledged that her oldest daughter, [C.], is 

now sixteen (16) years of age and lives with her paternal 

grandparents. The father to this child is [C.S.] [Mother] does 

not have any custodial rights relative to this child. She was 

fourteen (14) years of age when she gave birth to this child. 

 [Father] also complained of the Mother smoking during her 

pregnancy with [Child]. [Mother] testified that [Father] never 

voiced such complaint, however, again we find [Mother’s] 

testimony not to be credible. 

 Clearly, [Mother’s] past history has been unstable and 

chaotic. She has exercised poor judgment in her past 

relationships with men. [T.H.] does appear to have provided 

some structure and stability in her life and that of her children, 

but again, their relationship is less than a year old. 

 What is of utmost concern to the court is the testimony of 

[L.B.], who testified on behalf of [Father]. [L.B.] is a stay-athome mother with an 11 year old child. She lives in Claysburg 

and has known [Mother] since the family moved in next door in 
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March, 2014. They lived next door for approximately 71⁄2 

months until on or about October 7, 2014. During this course of 

time, there were occasions when [L.B.] babysat [Mother’s] 

children. She also testified that [Mother] told her that she 

served as a “housekeeper and companion” for a gentleman and 

that she would do garden work and perform oral sex on him for 

$10.00 per hour. [Mother] also advised [L.B.] that she did not 

want [Father] to know that she had picked up this extra job. 

[L.B.] indicated that she met this gentleman, did not feel 

comfortable and never returned. She also advised [Mother] that 

this man was “not normal” and she voiced her concerns. She 

indicated [Mother] then quit this employment two (2) weeks 

later. 

 [L.B.] indicated that she was inside [Mother’s] home 

approximately 20 to 30 times between the time period of 

March—October 2014. She described that one could barely walk 

through [Mother's] bedroom; the bathroom was total chaos, the 

children’s room was rarely clean, and that the smell of cat litter 

boxes was “unimaginable”. [L.B.] testified that [Mother] had 

three (3) cats, then a fourth and then a fifth cat as well as a 

dog. The house was exterminated in September 2014 and then 

again by the landlord after [Mother] and the family moved out in 

October 2014. 

 [L.B.] related different incidents where there was lack 

supervision by [Mother], specifically an incident when [J.] (then 

4 years of age) was riding her bike, went out on the roadway 

and was almost hit by a vehicle; another incident in August or 

September 2014 when a man came to the house whom the 

children called “daddy” and [Mother] asked [L.B.] to keep the 

girls out of the house as she wanted to have sex with this 

individual. [T.H.] was at work at this time. [L.B.] told of 

another incident during a September 2014 evening when the two 

girls were outside playing and [Mother] was nowhere to be 

found. [L.B.] went inside the house and found [Child] alone in 

the house. She held him until [Mother] came back home 

approximately 1⁄2 hour later. 

 Around Mother’s Day, 2014, [L.B.] met [Mother’s] mother 

[(“Maternal Grandmother”)]. [L.B.] indicated that [Mother] was 

talking about sex, dildos and handcuffs[,] and she brought out 

handcuffs and whips and said she was going to use them on 

[T.H.] that night. During this conversation, the girls were 
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present in the living room[,] and [Maternal Grandmother] was 

holding [Child]. 

 [L.B.] related another incident that occurred in late 

summer, 2014 when [Mother] told her that they had champagne 

and wine coolers and had “a heck of night drinking and 

partying”. [Mother] said she sent the girls to bed early and 

remarked[,] “I hope you didn’t hear anything”, explaining that 

they were running outside naked[,] and that [Maternal 

Grandmother] videotaped she and [T.H.] while they were having 

sex on the back deck. [L.B.] testified that [Maternal 

Grandmother] tried to show her the video on her cell phone but 

that [Mother] told her not to. 

 [L.B.] also testified that she has seen the girls sit around 

the house naked with [T.H.] putting lotion on them. She has 

heard [Mother] scream and swear and hit the children with a 

wooden spoon. 

 [L.B.] testified that she came to court to testify “for the 

welfare of all three children, especially [Child]”. She wants to 

see [Child] grow up in a good home environment. [L.B.] was 

concerned as to the children’s welfare during the summer of 

2014 and did contact Blair County Children, Youth & Families. 

[L.B.] also indicated that the police have visited her on a few 

occasions to discuss [Mother] and the living environment for the 

children. 

 We are satisfied that [L.B.] acted with good intentions in 

coming to court and testifying on behalf of [Father]. Her 

testimony was very detailed and specific. [Mother]

acknowledged that she and [L.B.] had a friendly relationship 

before going their separate ways. [Mother] never provided any 

plausible explanation as to why their friendship ended, adding 

further credence to the testimony of [L.B.] 

 [L.B.] also confirmed that she just recently met [Father] 

and that she is not friends with him or his family. 

 We find [L.B’s] testimony to be credible and, therefore, 

have serious concerns as to the home environment that [Mother] 

has, and will provide into the future for [Child]. We are fully 

satisfied that [Father] has, and will continue to provide a healthy 

home environment for [Child]. We were impressed with [Father] 
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and are encouraged by the fact that he seems to have a positive 

relationship with his parents and extended family members, who 

together will provide a positive source of support for this young 

child growing up. 

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

physical, emotional, developmental, educational and 

special needs of the child? 

 We find that both parties have, and would continue to 

attend to the daily physical, emotional, developmental, 

educational and special needs of the child. [Child] is healthy and 

developmentally on track. 

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

 The parties live approximately 10 minutes away from each 

other. 

(12) Each party’s availability to care for the child or 

ability to make appropriate child-care arrangements.

 [Father] has his parents and other extended family

members available in the area to care for [Child]. Neither 

[Mother] nor [T.H.] have any family in the area, therefore, it 

would be necessary for them to utilize a daycare or a caregiver if 

both are working and /or otherwise unavailable. 

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

willingness and ability of the parties to cooperate with 

one another. 

 Generally, since [Child’s] birth, both parties have been 

able to engage in civil communication with each other and have 

shown a willingness to be flexible and cooperate concerning 

[Child]. 

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

member of a party’s household. 

 This is a non-factor for both parties. 

(15) The mental and physical condition of a party or 

member of a party’s household. 
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 This is a non-factor for both parties, other than [Mother] is 

currently engaged in physical therapy as she is recovering from 

knee surgery. 

(16) Any other relevant factors. 

 There was much testimony spent on issues involving the 

paternal grandparents, especially the paternal grandfather, and 

[Mother]. In summary, we accept the fact that they do not have 

a positive relationship and that there is not an open and civil line 

of communication between them. However, based upon the 

evidence adduced during both of our hearings, we can 

understand why the paternal grandparents have concerns 

relative to [Mother’s] home environment and past history 

involving men, including specifically her interlude with [J.D.] 

while she was married and cohabitating with . . . [Father]. 

 As a word of caution, we would strongly encourage the 

paternal grandparents (especially the paternal grandfather) and 

[Mother] to be civil with each other and avoid making any 

derogatory and disparaging comments about the other, 

especially in the presence of [Child]. 

Summary/Conclusion: 

 In considering all relevant factors to determine custody as 

set forth in 23 Pa.C.S.A. §5328, and taking into consideration 

the paramount concern in a child custody case, i.e., the best 

interests of the child, [Child], we are going to award [Father] 

primary residential custody. In review of [Father’s] 

circumstances, we find nothing but positive factors. [Father] has 

no prior drug and alcohol history nor criminal involvement. He 

owns his own home and is stable and self-supporting. He has a 

close relationship with his parents and extended family 

members, many of whom are in the Blair County area. He has 

been totally devoted and committed to his son, being present at 

the time of his birth and attending all medical appointments 

except for the brief two (2) month period of time that the 

consensual PFA Order was in effect. He has provided, and from 

all accounts will continue to provide, a healthy, safe, stable and 

secure home environment for his son. 

 [Mother] does appear to be taking some steps to improve 

the quality of her life. We certainly give her credit for obtaining 
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her GED and participating in college courses on-line through 

Mississippi State University. As we stated above, [T.H.], who 

has a good job and significant income has brought some stability 

into her life. However, their relationship has only been in 

existence for a little over one (1) year. Based upon [Mother’s] 

prior history, we have some concerns as to the future of this 

relationship. 

 [Mother] has had a chaotic history, including involvement 

with the criminal justice system and Dauphin County Children 

Youth & Services. Her parental rights were terminated for three 

(3) of her children. She has made questionable choices 

concerning her relationships with men. She has had instability 

regarding her housing and employment. We are also very 

concerned with the incidents as testified to by [L.B.], whose 

testimony we found to be credible. It is important to note that 

some of incidents that [L.B.] testified to occurred after [Mother] 

and [T.H.] began their relationship. [Mother] and [T.H.] have 

lived together since June, 2014, and they lived next door to 

[L.B.] until October, 2014. 

 Based upon [Father’s] self-employment, he is readily 

available the months of November through May to care for his 

son. Even during his busy season, his work schedule is flexible. 

It is important that [Child] maintain his relationship and bond 

with his two (2) half-sisters, [J. and A.] Therefore, we will 

attempt to construct a custody schedule that allows [Mother] 

and her family significant time with [Child]. 

 As we stated in court, we commend the parties for their 

ability to engage in civil communication over the years. We are 

especially impressed that since the Order was originally entered, 

there were no prior petitions for contempt or special relief. It is 

our hope that upon entry of this Order, the parties can continue 

to communicate and cooperate with each other, and be flexible 

relative to the custody schedule. We trust that they will 

continue to keep in mind [Child’s] best interests and welfare first 

and foremost. 

Trial Court Opinion and Order, 6/8/15, at 3–12 (internal citations omitted) 

(emphasis in original). 
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 As noted, Mother combines argument on her first and third issues. 

Mother’s Brief at 3, 5. She contends that the trial court committed an error 

of law or abused its discretion by awarding Father primary physical custody 

of Child because the evidence showed that she was the proper parent to 

have primary physical custody, and Father did not produce sufficient 

evidence to warrant an award of primary physical custody to him. Mother’s 

Brief at 5. Mother challenges the weight that the trial court placed on the 

testimonial evidence in relation to the section 5328(a) custody/best interest 

factors. 

Mother does not dispute the trial court’s determination regarding the 

weight it assigned to section 5328(a)(1), (2), (7), (8), (1), (11), (14), (15), 

or (16) based on the testimonial evidence. Rather, Mother specifically 

challenges the weight that the trial court placed on the testimonial evidence 

with regard to section 5328(a)(3), asserting that she has been Child’s 

primary caregiver and the provider of parental duties for Child under the 

February 4, 2014 custody order and its Addendum dated June 17, 2014. 

Mother’s Brief at 7. In her separately-numbered fifth issue in her brief, 

Mother asserts that the trial court should have accorded more weight to her 

performance of parental duties as Child’s primary caretaker, citing M.J.M. v. 

M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). Mother’s Brief at 15–16. In a 

related argument, Mother argues that because she had primary physical 

custody of Child under the June 2014 custody order and Addendum, the trial 
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court should have weighed considerations of stability under section 

5328(a)(4) in her favor. Mother’s Brief at 7. 

 In M.J.M., this Court considered the mother’s argument that the trial 

court erred by failing to afford proper consideration to her role as the child’s 

primary caretaker. The mother had desired for the trial court to afford more 

weight to her role as the child’s primary caretaker. A panel of this Court 

reasoned that the Act indicated 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 

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. 
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 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 

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). 

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

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

the trial court afforded to the testimony related to factors 5328(a)(3) and 

(4), and the primary caretaker doctrine. We find that the trial court’s 
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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 as to the factors set forth in 

5328(a)(3) and (4). C.R.F., 45 A.3d at 443. 

 Next, Mother asserts that the trial court should have afforded 

additional weight to the fact that she lives with her fiancé, T.H., and her two 

daughters, who are available to assist her with Child. She argues that the 

trial court should have found that she has more in-home support from her 

family members than Father, who lives alone but has extended family 

members living nearby. Accordingly, Mother urges that the trial court 

should have weighed the factors set forth in section 5328(a)(5) and (12) in 

her favor. Mother’s Brief at 7–8. 

 Again, Mother is requesting this Court to disturb the trial court’s 

weight determinations with regard to these factors. As we stated in M.J.M., 

this Court’s role does not include making independent factual 

determinations, and, 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. Here, we find 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. Thus, we will not 

disturb the trial court’s determination as to the factors set forth in section 

5328(a)(5) and (12). C.R.F., 45 A.3d at 443. 
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 Mother avers that the trial court should have found that the 

testimonial evidence with regard to section 5328(a)(6), Child’s relationships 

with his half-siblings, weighs in favor of Mother retaining primary physical 

custody of Child. Mother’s Brief at 8. In her separately-numbered second 

issue in her brief, Mother argues that the trial court should have accorded 

more weight to the consideration of raising the half-siblings and Child 

together under the “family unity” or “whole family” doctrine, citing M.J.M., 

63 A.3d 331. Mother’s Brief at 15–16. 

 For the reasons expressed in M.J.M. concerning the viability of the 

primary caretaker doctrine in light of the Act, we find no merit to Mother’s 

argument concerning the family unity or whole family doctrine. We find 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. 

Therefore, we will not disturb the trial court’s determination. C.R.F., 45 

A.3d at 443. 

 Finally, Mother challenges the trial court’s credibility and weight placed 

on the section 5328(a)(9) factor. She complains that the trial court placed 

undue weight on this factor and accepted unreliable testimony from L.B., 

who Mother posits did not witness the incidents that she described and had 

not complained to police. Mother’s Brief at 8–10. Mother urges that L.B. 

could not have observed any of the incidents after October of 2014, because 

Mother moved from L.B.’s residential area. Id. at 9. Mother asserts that 
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there was no testimony of any negative effect upon the children currently 

residing in her home due to any of the alleged incidents described by L.B. 

Id. at 9–10. In her related fourth issue in her brief, Mother avers that the 

trial court committed reversible error in basing its decision on Mother’s past 

conduct because there was no ongoing negative effect on Child or his halfsiblings. Mother’s Brief at 12–13. Mother contends that the trial court 

improperly considered her past history, citing In re Leskovich, 385 A.2d 

373, 377 (Pa. Super. 1978), a case which predated the Act. 

 We find no merit to Mother’s claims. The trial court did not base its 

custody decision on Mother’s past actions. Rather, the trial court considered 

all of the evidence concerning Mother’s actions, including those from the 

summer and early fall months preceding the custody hearings. For the 

reasons expressed in M.J.M., we find no expression of the Legislature in the 

Act of any test regarding an ongoing negative effect on children. The Act 

sets forth only the sixteen-factor custody/best interest test. We find that 

the trial court’s conclusions in this matter are not unreasonable, as shown by 

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

court. Therefore, we will not disturb the trial court’s determination. C.R.F., 

45 A.3d at 443. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 1/8/2016