J-S37031-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.M.M.

v.

G.J.M. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 569 EDA 2018

Appeal from the Order Entered January 18, 2018

in the Court of Common Pleas of Pike County Civil Division at No(s): 

2111-2008-CV

BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 08, 2018

Appellant, G.J.M. (“Father”), files this appeal from the order dated and 

entered January 18, 2018, in the Pike County Court of Common Pleas, 

awarding him and A.M.M. (“Mother”) shared legal custody and Mother primary 

physical custody of their minor son A.M. (“Child”), born in May 2005. After 

review, we affirm the trial court’s order.

The trial court summarized the relevant procedural and factual history

as follows:

[Mother] and [Father] are the natural parents of two (2) 

minor children, N.M., age 16, and A.M., age 12. The parties were 

subject to an existing Custody Order entered by this [c]ourt on 

December 29, 2008[,] which provided for Mother to exercise 

primary physical custody of the minor children with Father having 

rights of partial physical custody.

____________________________________________

* Former Justice specially assigned to the Superior Court.
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This matter came before the [c]ourt on Father’s Petition for 

Modification of Custody filed on October 24, 2016. Father 

requested primary physical custody of the minor child, A.M. The 

issue of custody regarding N.M. is not at issue. This [c]ourt held 

two (2) days of trial on August 22, 2017, and December 5, 2017.

This [c]ourt entered a Final Order in Custody on January 18, 

2018, which granted primary physical custody to Mother. Father 

was awarded periods of partial physical custody with A.M. on 

every other weekend of the month from Friday at 7:00 p.m. until 

Sunday at 7:00 p.m., as well as two (2) non-consecutive weeks 

of summer physical custody and shared periods of holiday 

custody. Father filed a Motion for Reconsideration on January 24, 

2018, which was denied on January 26, 2018.

On February 15, 2018, Father filed a Notice of Appeal as to 

the Final Order in Custody. Father simultaneously filed a Concise 

Statement of Matters Complained of on Appeal, in which he argues 

that the trial court abused its discretion in failing to grant Father 

primary physical custody of the minor child, A.M., and lists sixteen 

(16) specific averments.

Trial Court Opinion (“T.C.O.”), 3/16/18, at 1-2.

Notably, during the two-day hearing, the court conducted in camera, 

individual interviews of Child, Child’s older sibling, N.M., and Father’s 

girlfriend’s seventeen-year-old daughter, D.L.C., who currently resides in 

Father’s home. Additionally, Father and Mother, who were present and 

represented by counsel, both testified. Father also presented the testimony 

of his girlfriend, A.M.C., Paternal grandmother, M.F., and Clinical Director of

Catholic Social Services, Erin McClay, who performed a drug and alcohol 

evaluation of Mother in August 2017 and was accepted as an expert witness 

in the field of drug and alcohol assessments. Mother presented the testimony 

of her fiance’, J.A. 
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Moreover, by way of further background, in its order entered January 

18, 2018, the court set forth the following findings of fact:

FINDINGS OF FACT

1. Plaintiff, [Mother] and Defendant, [Father] are the natural 

parents of two (2) minor children, N.M., age 16 and A.M.[,] age 

12.

2. The parties are subject to an existing Custody Order entered by 

this [c]ourt on December 29, 2008[,] which adopted the terms of 

a Memorandum of Understanding between the parties at a 

Mediation Orientation held on December 9, 2008.

3. The December 29, 2008 Custody Order provides generally for 

Mother to exercise primary physical custody of the minor children 

with Father having rights of partial physical custody.

4. On October 24, 2016, Father filed his Petition for Modification 

of Custody in which he requested primary physical custody of A.M.

5. The issue of custody regarding N.M. is not at issue in this 

proceeding.

6. Two (2) days of custody trial were held in this matter on August 

22, 2017 and December 5, 2017.

7. Mother appeared at trial with legal counsel, Robert Reno, 

Esquire.

8. Father appeared at trial with legal counsel, Ashley Zimmerman, 

Esquire.

9. The [c]ourt accepted the [in camera] testimony of A.M. and 

N.M.

10. As is this [c]ourt’s long-standing policy, we do not address the 

specific testimony of the minor children in this Order so as not to 

disclose to the parties their children’s testimony.

11. The children’s [in camera] testimony was conducted under 

oath and recorded for appellate purposes if needed.

12. An additional minor child, D.C.[,] testified at the August 22, 

2017 custody trial on behalf of Father.
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13. D.C. is the seventeen (17)[-]year[-]old child of Father’s 

paramour, [A.C.].

14. D.C.’s testimony was likewise conducted under oath and 

recorded.

15. [A.C.] and D.C. live with Father [in] Milford, Pike County, 

Pennsylvania. 

16. D.C. and A.M. have a good relationship.

17. Despite the general nature of the December 29, 2008 custody 

order, Father exercises partial physical custody with A.M. on 

Sundays until 8:00 p.m. and on Mondays during after school 

hours.[1]

18. A.M. has his own bedroom in Father’s residence.

19. Father and a former paramour own the residence [in Milford].

20. Father has lived at this residence for the past eight (8) years.

21. Father’s home is located in the Delaware Valley School 

District.

22. Father had temporary physical custody of A.M. for 

approximately three (3) months while Mother was incarcerated in 

the Pike County Jail for a criminal proceeding.

23. During this time, A.M. attended school in the Delaware Valley

School District.

24. Father is employed by the United States Department of 

Homeland Security.

____________________________________________

1 Despite the nature of Father’s physical custody as described, Father testified 

that this schedule had been in effect for approximately five months but was 

different in the summer. Notes of Testimony (“N.T.”), 8/22/17, at 5. Further, 

while Mother testified to a lack of regular overnight physical custody for 

Father, as acknowledged by Mother, Father had exercised overnight physical 

custody of Child since 2009, indicating that Father had Child “one or two nights 

a week.” N.T., 12/5/17 a.m., at 99.
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25. Father is presently on suspension from that employment 

pending finalization of internal review of that agency based on 

criminal charges that were filed against Father and which were 

subsequently dismissed.[2]

26. Father reported seventeen (17) years of employment with the 

federal government.

27. Father does not exercise any physical custody with [regard to] 

N.M.

28. Father and N.M. do not have any relationship at the present 

time and Father is not seeking any physical custody rights with 

regard to N.M.

29. Father expressed his love nevertheless for N.M. and a 

willingness to engage in counseling sessions with N.M. to 

rehabilitate their relationship.

30. Father acknowledged that he has strained relations with 

Mother.

31. Father asserted that A.M. has missed a lot of time from school 

while in the primary physical custody of Mother.

32. Father follows A.M.’s school progress on PowerSchool.

33. A.M.’s PowerSchool report for the 2016-2017 school year 

reflected sixty-five (65) absences.

34. N.M.’s PowerSchool report for the 2016-2017 school year 

reflected fifty-three (53) absences.

35. Father expressed concern for Mother’s ability to properly care 

for A.M. due to intoxication and failure to abide by prior court 

orders.

36. In 2009, Mother was court ordered to attend an in-patient 

rehabilitation facility.

37. Father claims that Mother did not comply with that court order.

____________________________________________

2 Upon review, it appears that, by the hearing on December 5, 2017, Father’s 

employment with the Department of Homeland Security was reinstated. N.T., 

12/5/17 a.m., at 102.
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38. In 2016, Mother became incarcerated following a probation 

violation.

39. Father obtained temporary, emergency physical custody of 

A.M. while Mother was incarcerated.

40. Father expressed a willingness to co-parent with Mother.

41. Father facilitated visits between A.M. and Mother at the Pike 

County Jail during the time of her incarceration.

42. Father has an excellent relationship with A.M. and engages in 

various activities with said child including fishing, football, outdoor 

activities and boating.

43. [A.C.] is available to provide care for A.M. when Father is not 

at home or available.

44. Father disciplines A.M. for poor behavior by taking things away 

from him and talking to him.

45. Father seeks primary physical custody of A.M.

46. Father indicated that he is willing to drive A.M. to and from 

school at Wallenpaupack Area School District[,] if awarded 

primary physical custody.

47. Father admitted that A.M. was involved in a minor altercation 

at the Delaware Valley School District during the limited time the 

child was enrolled there over an argument involving another 

student.

48. Father stated that A.M. has had several in school suspensions 

while enrolled in the Wallenpaupack Area School District.

49. Father’s criminal charges, as discussed above, resulted in his 

suspension from work without pay.

50. Father identified [C.H.] as his former girlfriend who also owns 

an interest in the real property he resides in.

51. [A.C.] moved into Father’s residence in September 2016.

52. Father reported that he drinks alcohol once or twice per week 

usually being a glass of wine or a beer.

53. Father made one report to Pike County Children and Youth 

based on an allegation that Mother had hit A.M. on the head with 

a hairbrush.
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54. Father stated that said report was determined to be 

unfounded.

55. Father is not making any abuse allegations about Mother 

regarding this custody proceeding.

56. Father estimated the distance between the parties’ residences 

as twenty (20) minutes.

57. [A.C.] is Father’s paramour and resides with Father and her 

child, D.C.

58. [A.C.] is employed by [W.T.] and [C.R.].

59. [A.C.] reports having a good relationship with A.M.

60. [A.C.] can assist and is willing to do so with care for A.M.

61. [A.C.] testified that Father does not drink alcohol to excess 

and is not violent.

62. [M.A.F.] is the mother of Father, resides in Carmel, New York 

and supports Father’s claim for primary physical custody.

63. Erin McClay testified on behalf of Father as an expert witness 

in the field of drug and alcohol assessments.

64. Ms. McClay has long been employed at Catholic Social Services 

and has conducted numerous drug and alcohol assessments 

through the years.

65. Ms. McClay received an Order from this [c]ourt for a drug and 

alcohol assessment of Mother as part of these custody 

proceedings.

66. Ms. McClay conducted an evaluation of Mother on August 15, 

2017.

67. Mother had two (2) follow up appointments with Ms. McClay 

on August 17, 2017 and August 18, 2017.

68. The aforementioned evaluation consisted of an interview of

Mother.

69. Catholic Social Services had conducted three (3) prior drug 

and alcohol evaluations of Mother.

70. Ms. McClay described Mother on August 15, 2017 as being 

nervous and shaky.
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71. Ms. McClay stated that Mother smelled of alcohol during the 

appointment on August 17, 2017, tested negative for alcohol on 

August 15, 2017 and tested positive for alcohol on August 18, 

2017.

72. Ms. McClay recommended that Mother receive out-patient 

counseling for drug and alcohol issues[,] including individual or 

group sessions.

73. According to Ms. McClay, Mother initially agreed to the 

counseling and then called Catholic Social Services to state that 

she didn’t want to participate any further.

74. Ms. McClay identified being provided with a history of a suicide 

attempt by Mother in 2016[,] which Mother denied.

75. After evaluations by Catholic Social Services in 2015 and 

2016, that agency did not recommend any further treatment for 

Mother at those times.

76. Mother’s positive alcohol test on Friday, August 18, 2017 

occurred at 4:00 p.m. and registered a reading of 0.044 blood 

alcohol content.

77. Mother told Ms. McClay that she had one glass of wine at 2:00 

p.m. on August 18, 2017 prior to coming in for her appointment.

78. Ms. McClay opined that Mother does not acknowledge that she 

has a problem with alcohol.

79. [J.A.] is the fiancé of Mother.

80. [J.A.] has resided with Mother since March of 2017.

81. [J.A.] has two (2) minor children ages 12 and 6.

82. [J.A.] testified that his children get along well with A.M. and 

N.M.

83. [J.A.] stated that while Mother drinks alcohol he has never 

seen her intoxicated.

84. Mother’s residence consists of four (4) bedrooms and two (2) 

bathrooms.

85. The residence is a bi-level home located in [a] private 

residential community and within the Wallenpaupack Area School 

District.
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86. [J.A.] is employed as a quality assurance operator.

87. [J.A.]’s children get along well with Mother.

88. [J.A.] testified that A.M. suffered a concussion injury at a []

school football practice in September 2017.

89. Father picked A.M. up from school on this date, informed 

Mother of the situation and transported A.M. to the hospital for 

treatment.

90. [J.A.] acknowledged [his] prior convictions for driving under 

the influence approximately twenty (20) and twelve (12) years 

ago[,] respectively.

91. [J.A.] expressed concern about A.M.’s behavior at Mother’s 

house after he returns from a period of physical custody with 

Father.

92. [J.A.] is also employed as a driver for Uber.

93. He described Mother as having one (1) drink of alcohol when 

they go out socially.

94. Mother’s parents own the home in which Mother, [J.A.] and 

the children reside.

95. [J.A.] acknowledged involvement in a prior protection from 

abuse case in Lackawanna County in 2015.

96. [J.A.] reported no history of drug or alcohol abuse as well as 

no mental or physical condition that would affect his ability to 

provide care for the minor children.

97. Mother resides [in] Lords Valley, Pike County, Pennsylvania.

98. Mother described A.M. and N.M. as having a normal sibling 

relationship.

99. N.M. is a senior in high school and is in the process of applying 

to colleges.

100. Mother’s mother resides in Yonkers, New York.

101. Mother acknowledged that the [] home she resides in is

owned by her mother.

102. Mother and the minor children have lived in this same home 

for approximately ten (10) years.
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103. A.M. has attended the Wallenpaupack Area School District 

since kindergarten[,] with the brief exception of his enrollment in 

the Delaware Valley School District while his Mother was 

incarcerated.

104. A.M. is presently in seventh (7th) grade.

105. Mother described A.M.’s grade[s] as average and stated that 

the child has missed twenty-two (22) days of school[,] with fifteen 

(15) being doctor excused, five (5) being excused for other 

reasons and two (2) being unexcused.

106. Mother described A.M. as being healthy[,] with a prior recent 

history of a concussion, the flu for a few days and exposure to 

hoof foot mouth disease as part of the [] school football team.

107. Mother has limited communication with Father.

108. Mother described Father as being verbally abusive and 

manipulative.

109. Mother claims that this behavior was exhibited in front of the 

minor children.

110. Mother further claims that Father’s verbally abusive conduct 

has continued since 2008[,] with a recent incident occurring in 

October 2017 when Father allegedly called Mother various 

inappropriate names during a custody exchange.

111. Mother testified that she has never attempted to commit 

suicide.

112. Mother requests that she retain primary physical custody of 

A.M.

113. Mother identified two (2) reports of abuse against her 

through Pike County Children and Youth, both of which were 

unfounded.

114. Mother stated that she provides the primary parental care 

for A.M. and N.M.

115. Mother testified that while she attends most school events 

for A.M. that [sic] Father only attends the child’s football games.

116. Mother identified A.M.’s pediatrician as Sterling Pediatricians.
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117. Mother has scheduled all doctor appointments for A.M. and 

N.M.

118. A.M. has no special medical needs.

119. Mother acknowledged that she was incarcerated for three (3) 

months as indicated above.

120. During [Mother’s] incarceration, A.M. resided with Father.

121. Father returned A.M. to Mother’s physical custody upon 

[Mother’s] release from incarceration and thereafter commenced 

his custody modification proceeding.

122. Mother’s extended family resides in Yonkers, New York.

123. A.M. has friends within [Mother’s] community[,] including 

many members of his football team.

124. Mother described A.M.’s behavior as being different between 

her house and Father’s house.

125. Mother claims that she has tried to facilitate a relationship 

between A.M. and Father.

126. Mother estimated the distance between the parties’ homes 

as thirty (30) to forty (40) minutes.

127. Mother is not employed outside of the home and is always 

available to provide care for the minor children.

128. Mother has one (1) prior driving under the influence 

conviction from 2016.

129. Mother reported no other prior criminal convictions.

130. Mother stated that she had one (1) glass of wine with dinner 

prior to being tested at Catholic Social Services.

131. Mother denied the consumption of any controlled substances.

132. Mother reported no mental or physical condition that would 

affect her ability to provide care for the minor children.

133. Mother reported no prior involvement in any protection from 

abuse case.

134. Mother is agreeable to Father having periods of partial 

physical custody with A.M. for overnights.
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135. Mother’s original sentence for the driving under the influence 

conviction was 72 hours to 6 months of incarceration.

136. Mother subsequently violated the terms of her parole for 

drinking alcohol and was sentenced on the parole violation to 

serve three (3) months in the Pike County Jail.

137. Mother reported that she presently possesses a valid 

Pennsylvania driver’s license.

138. Mother has not received any in-patient drug and alcohol

treatment since June 2009.

139. Mother received out-patient drug and alcohol treatment from 

the Marworth facility.

140. Mother denies having a drinking problem.

141. Mother disagrees with Catholic Social Services’

recommendation for outpatient drug and alcohol treatment.

142. Mother proposed that Father receive partial physical custody 

of A.M. on every other weekend and requested that said weekends 

coincide with the weekends when [J.A.]’s children are at their 

mother’s home.

Order, 1/18/18, Findings of Fact, ¶¶ 1-142.

On appeal, Father presents the following issue for our review:

Whether the trial court erred by reaching a conclusion that was 

manifestly unreasonable by granting Mother primary physical 

custody of the minor child when it was determined by the trial 

court that Mother “presents with a serious alcohol problem which 

she seems to minimize” despite prior orders of the [c]ourt 

ordering Mother to comply with drug and alcohol treatment?

Father’s Brief at 16.

In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A. 

§§ 5321-5340, 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 
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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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted); see 

also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 635 

Pa. 754, 129 A.3d 521 (2016).

This Court consistently has held:

[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)). In addition,

[a]lthough 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.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations 

omitted).
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The paramount concern in any custody case decided under the Act is 

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

5323 of the Act provides for the following types of awards:

(a) Types of award.—After considering the factors set forth in 

section 5328 (relating to factors to consider when awarding 

custody), the court may award any of the following types of 

custody if it is in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

Section 5328(a) sets forth the best interest factors that the trial court 

must consider in doing so. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 

(Pa.Super. 2011). Specifically, 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.A. § 5328(a).

Further, with regard to the custody factors, we have stated as follows:

. . . “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 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 in open court or in a written 

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

“[S]ection 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328(a) 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, [620 Pa. 727], 70 A.3d 808 (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, [620

Pa. 710], 68 A.3d 909 (2013). A court’s explanation of reasons 

for its decision, which adequately addresses the relevant factors, 

complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa.Super. 2014).
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In its order, despite a lack of specific reference in doing so, the trial 

court carefully analyzed and addressed each factor pursuant to Section 

5328(a) and the Child’s best interests as follows:

CONCLUSIONS OF LAW

1. In evaluating custody claims for a minor child, the paramount 

concern of the [c]ourt is the best interests of the child. [Swope 

v. Swope], 455 Pa. Super. 587, 689 A. 2d 264 (1997).

2. The [c]ourt should base its decision on all factors that have a 

legitimate affect on the child’s physical, intellectual, moral and 

spiritual well[-]being. [Swope v. Swope], 455 Pa. Super. 587, 

689 A. 2d 264 (1997).

3. In the process of determining the best interests of the minor 

child, the [c]ourt is required to consider and weigh, inter alia, the 

enumerated factors set forth in Section 5328 of the Pennsylvania 

Custody Act. 23 Pa. [C.S.A.] §5328.

4. Despite their conflict and limited communication, Mother and 

Father are equally likely to encourage and permit frequent and 

continuing contact between the minor child and the other party.

5. Mother alleged prior incidents of verbal abuse by Father and a 

recent incident of verbal abuse during a custody exchange.

6. There was no evidence presented of any other alleged acts of 

abuse or the parties’ involvement in any protection from abuse 

cases.

7. Mother has served as the primary caretaker of A.M. during his 

life.

8. Mother is not employed outside of the home and is available to 

provide care for A.M. as needed.

9. Father is employed with the United States Department of 

Homeland Security.

10. The [c]ourt finds that A.M. needs stability and continuity in his 

education, family and community life.

11. Mother resides with the minor children, A.M. and N.M.[,] as 

well as her fiancé, [J.A.,] in [a] private residential community.
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12. Mother and the minor children have resided at this home for 

approximately ten (10) years.

13. The minor children have known this home as their residence 

throughout most and/or all of their lives.

14. A.M. is enrolled in the Wallenpaupack Area School District.

15. A.M. has attended the Wallenpaupack Area School District 

since kindergarten.

16. A.M. is well[-]adjusted to the Wallenpaupack Area School 

District, plays on the [] school football team and has various 

friends within [Mother’s] community who are likewise on the 

football team.

17. Father resides in [a] private residential community with his 

paramour, [A.C.] and [A.C.]’s minor child.

18. The minor children, A.M. and N.M.[,] have a good normal 

sibling relationship.

19. The minor children, A.M. and N.M.[,] testified before the court 

[in camera].

20. The [c]ourt has considered the well-reasoned preference, if 

any, of A.M. in reaching this custody determination.

21. Mother alleged that Father has engaged in name[-]calling and 

that A.M.’s behavior is noticeably worse when he returns from a 

period of physical custody with Father.

22. There is no other evidence of either parent attempting to turn 

the minor child, A.M.[,] against the other parent.

23. Mother is more likely to maintain a loving, stable, consistent 

and nurturing relationship with A.M. adequate for his emotional 

needs.

24. As indicated above, Mother has been the primary caretaker of 

A.M. throughout his life.

25. A.M. is stable in his present home environment, schooling 

environment and accustomed to Mother’s household routine.

26. Mother is more likely to attend to the daily physical, emotional, 

developmental and educational needs of A.M.
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27. Mother is not employed outside of the home and is available 

at all times for child[-]care for A.M. and to address his needs as 

presented.

28. Father is employed outside of his home, but is on suspension 

presently from said employment and is available to provide child[-

]care for A.M. and to address his needs as presented.

29. The parties have a significant level of conflict and distrust.

30. The parties are nevertheless capable of communicating with 

one another for the purpose of carrying out a physical custody 

schedule as ordered by the [c]ourt.

31. Mother presents with a serious alcohol problem[,] which she 

seems to minimize.

32. Despite a prior history of alcohol abuse[,] which has resulted 

in Mother serving periods of incarceration for a driving under the 

influence conviction and a violation of the terms of her parole, 

Mother continues to consume alcohol[,] even doing so on the 

afternoon of a known test by Catholic Social Services.

33. Should Mother commit a verifiable abuse of alcohol in the 

future, the current determination of physical custody shall be 

subject to immediate review for any appropriate changes to the 

physical custody of A.M.

34. Mother did not report any evidence of prior drug abuse.

35. Father did not report any prior history of drug and/or alcohol 

abuse.

36. There was no evidence presented of any past or present 

alcohol or drug abuse by any household member of the parties.

37. There was no evidence presented of any mental or physical 

condition of either party or any of their household members that 

would affect that individual’s ability to provide care for the minor 

child.

38. Mother has a prior criminal conviction for driving under the 

influence.

39. Mother reported no other criminal convictions.

40. Father reported no prior criminal convictions.
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41. There was no evidence presented of any prior child abuse 

committed by either party or any household member.

. . .

Order, 1/18/18, Conclusions of Law, ¶¶ 1-41.

Turning to Father’s issue raised on appeal, Father claims that the trial 

court erred in awarding primary physical custody to Mother. Father’s Brief at 

23-29. Despite acknowledgment and awareness of Mother’s alcohol problem, 

the trial court placed greater weight on maintaining the familiar and status 

quo for Child, Father contends. Id. at 28-29. Specifically, Father argues:

According to the [c]ourt’s Order of January 18, 2018, the [t]rial 

[c]ourt places a large weight on the fact that the minor child has 

primarily resided with Mother and [has] known the present home 

as [his] residence throughout most and/or all of [his life]. 

Additionally[,] the [c]ourt finds that A.M. has attended 

Wallenpaupack Area School District since kindergarten, is well[-

]adjusted, has friends, and participates on the football team. 

Although Father testified that he would be able to facilitate A.M.’s 

transportation to the Wallenpaupack Area School District from 

Father’s home, the [t]rial [c]ourt rejected that notion.

These conclusions, combined with Mother’s continued alcohol 

abuse, lead to the inference that the [t]rial [c]ourt made the 

custody determination in this matter solely on the uprooting of the 

minor child from the home A.M. has resided in previously. This 

[c]ourt, by affirmation of the lower court’s Order and opinion has 

determined that analyzing “the possible harm to the child in 

uprooting him from the care pattern he has known from a young 

age is not one of the factors the court must analyze when deciding 

the relocation of a child or the primary custody of a child under 23 

Pa.C.S.A. Section 5337 or 23 Pa.C.S.A. Section 5328.” Therefore, 

the trial court should weigh the factors, including the alcohol 

abuse of a party when determining primary custody of the minor 

child, but instead placed more weight on the previous custody 

arrangement of the parties and the pattern of care that was 

previously in place.
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The [t]rial [c]ourt in this present matter seems to 

acknowledge the gravity of Mother’s alcohol problems on the 

minor child, by concluding that “should Mother commit a verifiable 

abuse of alcohol in the future, the current determination of 

physical custody shall be subject to immediate review for any 

appropriate changes to the physical custody of A.M.” The fact that 

the [t]rial [c]ourt places the care pattern the minor child has 

previously known over the determination that Mother suffers from 

a “serious alcohol problem she seems to minimize”, constitutes a 

misapplication of the law and a judgment that is manifestly 

unreasonable given facts presented and the conclusions of law 

determined by the [t]rial [c]ourt.

Id.

In finding support for its determination with respect to custody, the trial 

court reasoned as follows:

The primary issue presented in this appeal is whether this [c]ourt 

abused its discretion by granting primary physical custody A.M. to 

Appellee. This [c]ourt did not abuse its discretion because it 

properly applied and weighed the twenty-three statutory factors 

set forth in the Pennsylvania Child Custody Act in order to 

determine the best interests of the child, A.M. [See] 23 Pa. C.S.A. 

§ 5328.[3] 

The Final Custody Order (“January Order”) makes abundantly 

clear that this [c]ourt properly weighed and evaluated all factors 

to be considered in a custody determination. The Findings of Fact 

section of the January Order addresses each of the statutory 

factors in paragraphs 1-142. This [c]ourt relies upon the 

extensive and thorough application of law contained in the 

January Order to substantiate the determinations made therein.

For example, Section 5328[(a)](4) instructs the [c]ourt to 

consider the need for stability and continuity in the child’s 

education, family and community life. The January Order 

indicates that A.M. has attended Wallenpaupack Area School 

District, where Mother and A.M. reside, since kindergarten and is 

presently in seventh grade. [Order, 1/18/18, Findings of Fact,] ¶

103. The January Order indicates that Mother and A.M. have 

____________________________________________

3 Section 5328(a) provides for seventeen custody factors.
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resided in the same [] residence for approximately ten (10) years. 

[Id. at ¶]¶ 101-102. The January Order indicates that A.M. has 

many friends, including members of his football team, within 

[Mother’s] community. [Id. at] ¶ 123. Furthermore, Mother has 

served as the primary caretaker for A.M. for most of his life. [Id.

at ¶]¶ 102 and 114.

Section 5328[(a)](7) instructs the [c]ourt to consider the wellreasoned preferences of the child, based on the child’s maturity 

and judgment. A.M. is twelve (12) years old, and this [c]ourt 

heard A.M.’s testimony [in camera] during trial and considered the 

preference, if any, of A.M. when making its final decision. [Id. at

¶]¶ 11 and 20. Section 5328[(a)](6) instructs the [c]ourt to 

consider the child’s sibling relationships. The January Order 

indicates that A.M., along with his biological sibling N.M., testified 

[in camera] and that they have a good, normal sibling 

relationship. [Id. at ¶]¶ 18 and 19. 

While this [c]ourt relies upon the extensive and thorough 

application of law contained in the January Order to substantiate 

the determinations made therein, we would like to address one 

particular area of concern. Appellant takes issue with this 

[c]ourt’s award of primary physical custody to Mother[,] despite 

evidence presented that Mother has struggled with alcohol abuse 

in the past and is not currently participating in alcohol treatment. 

Concise Statement [at ¶]¶ h-p. However, this [c]ourt noted in 

paragraph 33 of the Findings of Law section in the January Order, 

“Should Mother commit a verifiable abuse of alcohol in the future, 

the current determination of physical custody shall be subject to 

immediate review for any appropriate changes to the physical 

custody of A.M.” This [c]ourt also noted that there was no 

evidence presented of any past or present alcohol or drug abuse 

by any household member of the parties. [J.A.], Mother’s fiancé, 

testified that, while Mother drinks alcohol and consumes one (1) 

drink of alcohol when they go out socially, he has never seen her 

intoxicated. [Order, 1/18/18, Findings of Fact, ¶]¶ 83 and 93. 

[J.A.] has lived with Mother and A.M. since March of 2017.

Finally, this [c]ourt notes that, although both the history of this 

case and the evidence presented at trial demonstrate that Mother 

and Father have a high level of conflict between them, the record 

also demonstrates that both parents maintain a loving, stable, 

consistent and nurturing relationship with the child. There was no 

evidence presented of either party attempting to turn the child 

against the other party. §5328[(a)](8). Appellant has not 
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offered, and there is no evidence in the record which indicates, 

that the January Order is manifestly unreasonable or that this 

[c]ourt abused its discretion. Thorough review of the record 

indicates that this [c]ourt, after viewing and assessing each 

witness first-hand during trial, properly applied and weighed the 

appropriate factors for consideration in a child custody proceeding 

and made well-reasoned, properly-weighed determinations based 

on the best interests of the child.

T.C.O. at 3-4.

With regard to the custody factors, we have stated that the trial court 

is required to consider all of the Section 5328(a) factors in entering a custody 

order. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011). Although the 

court is required to give “weighted consideration to those factors which affect 

the safety of the child” pursuant to 23 Pa.C.S.A. § 5328(a), we have 

acknowledged that the amount of weight a court gives any one factor is almost 

entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013). 

Critically, as we stated in M.J.M.:

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.

Id. (emphasis added). Further, we have also noted that, while the primary 

caretaker doctrine is no longer viable, a court may still consider a parent’s role 

as primary caretaker in its consideration of the custody factors. 

We hasten to add that this conclusion does not mean that a trial 

court cannot consider a parent’s role as the primary caretaker 
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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 [S]ection 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).

Id.

As we construe Father’s claim on appeal, we interpret the issue raised 

at its core as a dispute to the weight and significance attributed to certain 

factors by the trial court. In particular, although not stated by Father in 

reference to specific factors, Father suggests by his argument that the trial 

court placed greater weight on Section 5328(a)(4), “[t]he need for stability 

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

opposed to Section 5328(a)(14), “[t]he history of drug or alcohol abuse of a 

party or member of a party’s household.” Father’s Brief at 28-29; 23 

Pa.C.S.A. § 5328(a). However, and significantly, as stated above, the amount 

of weight that a trial court gives to any one factor is almost entirely within its 

discretion. See M.J.M., 63 A.3d at 339. As such, as we discern no abuse of 

discretion, we find Father’s claim to be without merit. 

In the case sub judice, the trial court reasonably analyzed and 

addressed each factor under Section 5328(a). See Order, 1/18/18, 

Conclusions of Law, ¶¶1-41. Under the aforementioned standard of review 

applicable in custody matters, the trial court’s findings of fact and 

determinations regarding credibility and weight of the evidence are not 

disturbed absent an abuse of discretion. See C.R.F., 45 A.3d at 443; see 
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also E.R., 129 A.3d at 527. As we stated in King v. King, 889 A.2d 630, 

632 (Pa.Super. 2005):

It is not this Court’s function to determine whether the trial court 

reached the ‘right’ decision; rather, we must consider whether, 

‘based on the evidence presented, given [sic] due deference to 

the trial court’s weight and credibility determinations,’ the trial 

court erred or abused its discretion. . . .

(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005)). After 

careful review of the record, we determine that the trial court’s findings and 

determinations regarding the custody factors set forth in Section 5328(a) are 

supported by competent evidence in the record, and we will not disturb them. 

See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/18