K.G. v. E.D.

J-A13029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

E.D.

Appellee No. 2982 EDA 2013

Appeal from the Order entered September 27, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-05320

K.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

E.D.

Appellant No. 3128 EDA 2013

Appeal from the Order entered September 27, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-05320

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 30, 2014

Cross-Appellants, K.G. (Mother) and E.D. (Father), both appeal from

the September 27, 2013 order granting them shared legal and physical
____________________________________________

*
Former Justice specially assigned to the Superior Court.
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custody of their daughter, G.D. After thorough review, we reverse and

remand for further proceedings.1

We summarize the relevant factual and procedural history of this case

as follows. In September 2009, Mother and Father met on the dating

website Match.com. Trial Court Opinion, 11/27/13, at 4. At the time the

parties met, Father’s marital status was listed as divorced in his site profile.

Id. at 4, 8-9. Despite this listing, Father was in fact married to M.D. (Wife).

Id. at 4-5, 9. Mother and Father began dating in September 2009. Id. at

9. In the spring of 2010, Mother became pregnant with G.D., who was

subsequently born in December of 2010. Id. at 5, 9. Father’s name was

not listed on G.D.’s birth certificate. Id. at 5-6.

In late-January 2011, Mother signed adoption paperwork prepared by

Father’s attorney. Id. at 6, 8, 10. In doing so, Mother executed her

consent to the adoption of G.D. by Father and Wife. Id. at 8, 10-11. Father

subsequently obtained physical custody of G.D. from Mother on February 27,

2011. Id. at 7, 11.

On March 2, 2011, Father and Wife filed a petition to confirm Mother’s

consent to G.D.’s adoption and a petition for Wife’s adoption of G.D. On
____________________________________________

1
By unpublished memorandum, on August 15, 2014, this Court remanded
this matter and retained jurisdiction for the trial court to file a supplemental
opinion, addressing its factual determinations underlying its entire custody
finding. See K.G. v. E.D., --- A.3d --- (Pa. Super. 2014) (unpublished
memorandum). The trial court filed its supplemental opinion with this Court
on September 26, 2014.

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March 7, 2011, Mother filed a pro se petition to revoke her consent to G.D.’s

adoption. Mother alleged she executed this consent due to the fraud and/or

duress of Father. See Trial Court Opinion, 11/27/13, at 2; Mother’s

Complaint for Emergency Custody, 3/7/11, at ¶ 7. Also on March 7, 2011,

Mother filed a pro se emergency custody petition. Within this filing, Mother

alleged G.D. was living in Maryland with Father and Wife, and that Father

was denying Mother contact with G.D. Mother’s Complaint for Emergency

Custody, 3/7/11, at ¶ 7. Father subsequently filed a motion to stay the

custody action pending the outcome of the adoption action, which the trial

court granted on March 25, 2011.

On May 27, 2011, the trial court issued an agreed-upon temporary

custody order. This temporary order granted Father primary physical

custody of G.D. and Mother partial physical custody of G.D. on alternating

weekends. Trial Court Opinion, 11/27/13, at 2; Temporary Order, 5/26/11,

at 2-5. This order was to remain in effect until the conclusion of the

orphans’ court action. Temporary Order, 5/26/11, at 4-5.

Following a four-day hearing, the orphans’ court granted Mother’s

petition to revoke her consent to G.D.’s adoption on or around October 12,

2011. The orphans’ court concluded the consent had been procured by

fraud and duress. See Trial Court Opinion, 11/27/13, at 2. The orphans’

court dismissed, with prejudice, Father and Wife’s petition to confirm

consent and petition for adoption. Id. at 2-3. By a separate order, the

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orphans’ court directed the May 27, 2011 temporary custody order to remain

in full force and effect pending further order of court. Trial Court Order,

10/13/11.

Father and Wife appealed the orphans’ court order to this Court. See

In re Adoption of G.D., 50 A.3d 245 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 53 A.3d 51 (Pa. 2012). Due to the pending

appeal, the trial court stayed all further custody proceedings by order dated

December 14, 2011. The trial court directed that the May 27, 2011

temporary custody order would remain in full force and effect during the

pendency of Father and Wife’s appeal.

While awaiting our disposition of that appeal, Father filed two

emergency petitions seeking an order enjoining Mother from disclosing the

details of the custody and orphans’ court litigations. Father’s Emergency

Petition to Enjoin, 1/24/12; Father’s Emergency Petition to Enjoin, 2/16/12.

Mother also filed an emergency petition to correct and/or clarify the order of

court and for appointment of Guardian Ad Litem (GAL). Mother requested

that the temporary order be corrected to grant her shared legal custody.

Mother’s Emergency Petition, 4/25/12, at 4.2

By memorandum filed on May 18, 2012, this Court affirmed the

October 12, 2011 orphans’ court order. See G.D., supra. On June 12,
____________________________________________

2
We note that Mother’s petition does not contain pagination. Therefore, we
have assigned each page a sequential page number for ease of reference.

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2012, Mother filed a petition to lift the stay in the custody action and for an

immediate hearing. However, Father and Wife filed a petition for allowance

of appeal with our Supreme Court on June 18, 2012. Id. Our Supreme

Court denied that petition on July 17, 2012. Id.

Following a conference on Mother’s emergency petition to correct

and/or clarify the custody order, the trial court granted Mother and Father

shared legal custody on July 31, 2012. Trial Court Order, 7/31/12, at ¶ 1.

The trial court subsequently listed this matter for trial. Trial Court Order,

8/2/12 at 1. The trial commenced on March 25, 2013, and continued

through March 26, April 25-26, June 3-5 and 10-11, August 5, 7, 9, and 12-

14, 2013. At trial, Mother and Father’s testimony differed significantly. See

Trial Court Opinion, 11/27/13, at 4-11.

Following this protracted custody proceeding, the trial court granted

Mother and Father shared legal and physical custody on an alternating

weekly basis. Trial Court Order, 9/27/13, at 8. The trial court directed

Mother and Father to attend co-parenting counseling “until such time as the

counselor deems it no longer necessary, or, until further order of the Court.”

Id. at 10. By this order, the trial court also denied Father’s petitions to

enjoin Mother from disclosing the details of the orphans’ court litigation and

the custody matter on the Internet, to the media, or to any other third

party. Id. at 11.

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On October 24, 2013, Mother filed a timely notice of appeal. Mother

failed to file a concise statement of errors complained of on appeal with this

notice. See Pa.R.A.P. 1925(a)(2)(i) (providing that a concise statement of

matters complained of on appeal shall accompany a notice of appeal in a

children’s fast track case). On October 29, 2013, the trial court directed

Mother to file her concise statement within twenty-one days; Mother timely

complied with that order. Because no party claims prejudice resulted from

Mother’s failure to file a concise statement with her notice of appeal and

because Mother timely complied with the trial court’s order, we will not

quash or dismiss her appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa.

Super. 2009) (holding that an appellant’s failure to strictly comply with

Pa.R.A.P. 1925(a)(2)(i) did not warrant an application of the waiver rule, as

no court order had been violated, and there was no prejudice to any party).

On November 7, 2013, Father filed a timely notice of cross-appeal and

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i). See Pa.R.A.P. 511 (stating, “[t]he timely filing of an appeal

shall extend the time for any other party to cross appeal”); Pa.R.A.P. 903

(providing, “if a timely notice of appeal is filed by a party, any other party

may file a notice of appeal within 14 days of the date on which the first

notice of appeal was served[ ]”). The trial court subsequently filed its Rule

1925(a) opinion on November 27, 2013. Following remand by this Court,

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the trial court filed its supplemental opinion on September 26, 2014. See

K.G. v. E.D., --- A.3d --- (Pa. Super. 2014) (unpublished memorandum).

On appeal, Mother raises the following issue for our review.

[I.] Should the child custody order appealed from
be reversed where the statutory factors in 23
Pa.C.S.[A.] § 5328[(a)] do not support the
custody determination, and the trial court’s
findings of fact and conclusions of law are
unsupported by the record?

Mother’s Brief at 3. Additionally, Father raises the following three issues for

our review.

I. Should the [c]hild custody order appealed from
be reversed where the statutory factors in 23
Pa.C.S.[A.] § 5328[(a)] do not support the
custody determination by the [t]rial [c]ourt,
and the [t]rial [c]ourt’s findings of fact and
conclusions of law are unsupported by the
record[?]

II. Should the [c]hild custody order appealed from
be reversed when the [t]rial [c]ourt committed
prejudicial error in excluding evidence offered
by [Father] concerning Mother’s son and how
Mother raised and cared for her son[?]

III. Should the [c]hild custody order appealed from
be reversed when the [t]rial [c]ourt abused its
discretion in failing to enjoin Mother from
disclosing the details of the [a]doption and
[c]ustody matters on the [I]nternet, to the
media or to any person or entity not associated
with the [c]ustody or [a]doption matters[?]

Father’s Brief at 1.

The scope and standard of our review in custody matters is as follows.

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[T]he appellate court is not bound by the
deductions or inferences made by the trial
court from its findings of fact, nor must the
reviewing court accept a finding that has no
competent evidence to support it. … However,
this broad scope of review does not vest in the
reviewing court the duty or the privilege of
making its own independent determination. …
Thus, an appellate court is empowered to
determine whether the trial court’s
incontrovertible factual findings support its
factual conclusions, but it may not interfere
with those conclusions unless they are
unreasonable in view of the trial court’s factual
findings; and thus, represent a gross abuse of
discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 775 A.2d
835, 838 (Pa. Super. 2001)). Moreover,

[O]n issues of credibility and weight of
the evidence, we defer to the findings of the
trial [court] who has had the opportunity to
observe the proceedings and demeanor of the
witnesses.

The parties cannot dictate the amount of
weight the trial court places on evidence.
Rather, the paramount concern of the trial
court is the best interest of the child.
Appellate interference is unwarranted if the
trial court’s consideration of the best interest
of the child was careful and thorough, and we
are unable to find any abuse of discretion.

R.M.G., Jr., supra at 1237 (internal citations
omitted). The test is whether the evidence of record
supports the trial court’s conclusions. Ketterer v.
Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations

omitted).

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The primary concern in any custody case is the best interests of the

child. “The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

Instantly, because the custody trial commenced in March 2013, the

Child Custody Act (Act), 23 Pa.C.S. §§ 5321–5340, is applicable. See

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

custody evidentiary proceeding commences on or after the effective date of

the Act, i.e., January 24, 2011, the provisions of the Act apply). Section

5328 of the Act provides an enumerated list of factors a trial court must

consider in determining the best interests of a child when awarding any form

of custody.

§ 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

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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.

(3) The parental duties performed by each
party on behalf of the child.

(4) The need for stability and continuity in
the child’s education, family life and
community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the
child, based on the child’s maturity and
judgment.

(8) The attempts of a parent to turn the
child against the other parent, except in
cases of domestic violence where
reasonable safety measures are
necessary to protect the child from harm.

(9) Which party is more likely to maintain a
loving, stable, consistent and nurturing
relationship with the child adequate for
the child’s emotional needs.

(10) Which party is more likely to attend to
the daily physical, emotional,
developmental, educational and special
needs of the child.

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

(12) Each party’s availability to care for the
child or ability to make appropriate child-
care arrangements.

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(13) The level of conflict between the parties
and the willingness and ability of the
parties to cooperate with one another. A
party’s effort to protect a child from
abuse by another party is not evidence of
unwillingness or inability to cooperate
with that party.

(14) The history of drug or alcohol abuse of a
party or member of a party’s household.

(15) The mental and physical condition of a
party or member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a)(1)-(16).3

This Court has stated that, “[a]ll 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).

[In addition,] 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,
“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).

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3
The Act was amended, effective January 1, 2014, to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services).

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A.V., supra at 822-823. With these standards in mind, we turn to the

merits of this appeal.

Mother argues that the trial court abused its discretion by not granting

her sole legal and primary physical custody of G.D. Mother’s Brief at 51.

The crux of her argument is that the trial court failed to properly consider

and apply the evidence involving Father’s act of fraudulently procuring the

adoption consent in fashioning its custody order. Father similarly argues

that the trial court erred and abused its discretion by not granting him sole

legal and primary physical custody of G.D. Father’s Brief at 48-49, 54. Both

parties contend that the trial court’s conclusions of law lack support within

its factual findings and that the trial court did not properly apply the Section

5328(a) factors. Mother’s Brief at 51; Father’s Brief at 54. Specifically,

Mother contests the trial court’s conclusions as to Section 5328(a)(1), (2),

(8), (11), and (13), while Father contests the conclusions as to Section

5328(a)(1), (2), (3), (4), (8), (10), (11), and (13). Mother’s Brief at 52-59;

Father’s Brief at 54-63.

Upon agreement of the parties, the trial court admitted into evidence

the orphans’ court order granting Mother’s petition to revoke her consent to

G.D.’s adoption, this Court’s memorandum affirming the order, and our

Supreme Court’s denial of Father’s petition for allowance of appeal. N.T.,

3/25/13, at 8-9, 11. In addition to this documentary evidence, Mother and

Father testified with respect to the procurement of the adoption consent and

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the way Father came to exercise sole physical custody of G.D. from February

27, 2011 until the May 27, 2011 temporary order, and sole legal custody

until the July 31, 2012 temporary order. The trial court aptly set forth

Mother’s and Father’s testimony, which differed significantly, in its November

27, 2013 Rule 1925(a) opinion, and we adopt it herein. See Trial Court

Opinion, 11/27/13, at 4-11. Notably, Father testified he does not agree with

the orphans’ court finding that he fraudulently procured the adoption

consent. He stated, “I don’t agree with it, but I am abiding by it.” N.T.,

6/5/13, at 176.

With respect to Mother’s argument that the trial court failed to

properly consider and apply the evidence involving Father’s act of

fraudulently procuring the adoption consent in fashioning its custody order,

the trial court responded that it considered the above-described

documentary evidence, but failed to find the evidence relevant to its best

interest analysis pursuant to Section 5328(a). Trial Court Opinion,

11/27/13, at 16-18; Trial Court Opinion, 9/26/14, at 2-3. The trial court

reasoned that it “is not in a position to ‘redress’ any purported wrongs which

[the orphans’ court] found had occurred in the procurement of the adoption

consent.” Trial Court Opinion, 11/27/13, at 18. Rather, the trial court

explained that it “strictly limited” its determination “to a custodial

arrangement which would be in the best interest of the child … .” Id.; Trial

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Court Opinion, 9/26/14, at 3. Upon thorough review, we are constrained to

conclude that the trial court abused its discretion.

In addressing Section 5328(a)(10), which states the trial court must

consider “[w]hich party is more likely to attend to the daily physical,

emotional, developmental, educational and special needs of the child[,]” the

trial court found that Mother’s “limited involvement in the child’s life is [not]

indicative in any way that she is less likely to attend” to G.D.’s needs. Trial

Court Opinion, 9/26/14, at 13. Significantly, the trial court based this

finding on “the circumstances of how [ ] Father came to be in the position of

being the primary caretaker, specifically, based on a consent to adopt which

was later found to be fraudulently obtained by [ ] Father.” Id. Further, the

trial court rejected as not credible all of Father’s testimony alleging that

Mother is incapable of providing for G.D.’s daily needs. Id. at 13-14.

Nevertheless, the trial court failed to apply the evidence of Father’s

fraudulent procurement of the adoption consent to its analysis of Section

5328(a)(1), which looks at which party is more likely to encourage and

permit frequent and continuing contact between the child and another party.

Further, the trial court failed to properly apply the evidence that Father

exercised sole physical custody from February 27, 2011, to May 27, 2011,

without Mother’s consent.

In its September 26, 2014 supplemental opinion, the trial court

acknowledged that Father “unilaterally limit[ed]” Mother’s contact with G.D.

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from February 27, 2011, until the May 27, 2011 temporary physical custody

order. Trial Court Opinion, 9/26/14, at 5. However, the trial court excused

Father’s action because the orphans’ court “had not yet rendered a decision

on the accompanying adoption matter at that time, and based on the

Consent to Adopt signed by both parents, [ ] Father had full legal and

physical custody of the child until the May 2[7], 2011 agreed order was

issued.” Id. at 6. Therefore, the trial court found Father’s action of limiting

Mother’s contact with G.D. was “not indicative that [he] is incapable of

permitting and encouraging frequent contact between the child and [ ]

Mother to a degree which would permit the court to deny him shared

physical custody of the child.” Id. The trial court determined that both

parties have demonstrated they are able to permit and encourage frequent

and continuing contact. Order, 9/27/13, at 3.

We conclude the trial court abused its discretion in excusing Father’s

behavior in unilaterally limiting Mother’s contact with G.D. in light of the

competent record evidence that Father fraudulently procured the adoption

consent that resulted in the orphans’ court litigation. As such, we hold as

unreasonable the trial court’s conclusion that Father is able to permit and

encourage frequent and continuing contact between G.D. and Mother.

Additionally, we conclude the trial court abused its discretion to the

extent it based its conclusion under Section 5328(a)(1) on Mother having

consistently exercised partial custody on alternating weekends pursuant to

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the May 27, 2011 temporary order. The competent record evidence reveals

that the May 27, 2011 temporary physical custody order, as well as the July

31, 2012 temporary legal custody order, resulted from the trial court’s

intervention, at Mother’s request, for her custody rights. Moreover, although

Mother exercised her partial physical custody consistently since the

temporary order was entered, conflict and chaos has dominated the parties’

dealings, including at the time of custody exchanges. Mother aptly

summarized the extensive testimonial evidence in this regard as follows.

Father and [Wife] did everything in their power to
ensure that Mother received only the bare minimum
amount of visitation directed by the court, including
obstructing the [custody] exchanges with frivolous
requests, withholding medical information, failing to
provide clothing for the child, … refusing additional
visitation even when they were too ill or occupied to
care for G.D. and were frequently using daycare,
videotaping and shouting [during] the [custody]
exchanges ….

…

Father admitted to hiring private investigators to
follow Mother, [her boyfriend], and other people
Mother knows. He acknowledged that he allowed his
sister … to use information he provided to attack
Mother on the [I]nternet ….

…

Father testified that he does not consult Mother on
G.D.’s school, church, activities, or relocation, and
that they fight and do not get along when it comes
to G.D., although he claims that he wants to co-
parent with Mother. Mother confirm[ed] Father’s
lack of communication on these issues. Father and
[Wife] claimed that Mother consented to [their]

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relocation to Delaware, but disregarded their move
to Maryland in early 2011, claiming simply that
Mother knew they had a house there. Father and
[Wife] accuse Mother of bad parenting, and claim
that she does not show any interest in G.D. [Wife] …
called Mother a prostitute, accused her of having
STD’s, accused her of engaging in drugs, lesbian sex,
and threesomes, and claimed that she had sex with
old men and men at the massage parlor,[4] making
these accusations at least once in front of [Mother’s
boyfriend] and the children,[5] as well as on the
Internet.

Mother’s Brief at 24, 33, 38 (internal citations omitted).

Our review of the testimonial evidence confirms the above summary

and reveals Father and Wife’s animosity toward Mother throughout the

underlying custody proceedings and trial. The relationship between the

parties is so acrimonious that, in the July 31, 2012 temporary order granting

Mother shared legal custody, the trial court directed that neither Mother,

Father, nor Wife “were to participate in the exchange of the custody of the

child. Third party designees were to exchange the child inside the police

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4
Mother testified that, in approximately 2009, she worked at a massage
parlor that required her to conduct topless massages. Mother quit the job
but subsequently returned to it because she needed work. She last worked
at the massage parlor in January of 2010, nearly one year before G.D.’s
birth, and she has not returned. See Mother’s brief, at 10; see also N.T.,
3/25/13, at 24-27; N.T., 6/4/13, at 8. Mother testified that, for the last
three years, she has been employed at a motel as an accounting manager.
N.T., 3/25/13, at 27.
5
In addition to G.D., Mother has one son from a prior relationship, who was
age seven at the time the custody trial commenced. Mother has sole
custody of her son.

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stations in Whitemarsh Township, [in Montgomery County, Pennsylvania]

and Odessa, Delaware.” Trial Court Opinion, 11/27/13, at 3. The trial court

ordered that Mother, Father, and Wife “shall remain in their vehicles at all

times during the exchange of custody.” Trial Court Order, 7/31/12 at 1.

Further, the trial court ordered that there “shall be no videotaping of the

exchange of custody of the Child inside either police station.” Id. at 1.

Mother testified that, prior to the July 31, 2012 temporary order, Father and

Wife videotaped the custody exchanges. Specifically, Mother testified as

follows.

Q. Now, you received an Order, July 3[1], 2012, that
indicated there would be no videotaping at the
exchanges. Has videotaping continued?

A. It has, but they’re in their car videotaping. [The
order] says that there’s no videotaping … in the
police station[.] So, the way around it is to
videotape from the car. So they would videotape
– I could see the videotape camera in their car,
videotaping the exchanges. Through the window.

N.T., 3/25/13, at 251.

Moreover, Father continues to deny that he fraudulently procured the

adoption consent from Mother, and that he unilaterally limited Mother’s

contact with G.D. Even a review of Father’s brief to this Court demonstrates

the contention and hostility that exist, with Father arguing that Mother is the

one who is incapable of permitting frequent and continuing contact between

G.D. and him, and that he should be awarded primary physical custody,

although the record is devoid of any evidence favoring him in this regard.

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Father’s Brief at 54-56. Based on the foregoing, we hold the trial court’s

findings with respect to Section 5328(a)(1) are not supported by the

competent record evidence, and its conclusions are unreasonable.

With respect to Section 5328(a)(8), which looks at the attempts of a

parent to turn the child against the other parent, the trial court found “no

credible evidence that either parent has attempted to turn the child against

the other parent.” Order, 9/27/13, at 4. To the contrary, Mother argues the

following.

Father and [Wife] may not be engaged in overt,
active attempts to turn G.D. against Mother, but
they are engaged in a far more sinister and subtle
method of doing so; isolation. They are acting to
keep G.D. from Mother, so that she forgets Mother,
comes to view her as a stranger, and on her own
becomes less comfortable with Mother. But for the
court order in place to thwart them[,] it is certain
[Father and Wife] would be far more aggressive in
their efforts to keep Mother from G.D.

Mother’s Brief at 57.

On February 27, 2011, when Father first started to limit Mother’s

contact with G.D., G.D. was an infant of two months. Mother testified that,

after she filed the petition to revoke the adoption consent, but before the

hearing in that matter, the orphans’ court and counsel for the parties agreed

Mother should have visitation with G.D. N.T., 3/25/13, at 131. Mother

testified that Father would only agree to visits between Mother and G.D. if

he supervised them, and two such visits occurred in May of 2011. Id. at

131-132. During the second supervised visit, while Mother was holding G.D.

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on her lap, Mother testified that Father stated to her, “I would like to work

something out …. Let my wife adopt your baby.” Id. at 137. Mother

testified that when she refused, Father became angry, and tried to pry G.D.

from her arms. Id. at 138. She went on to testify that Father was holding

her down on the chair and that he was in her face yelling and threatening to

“blackmail” her about her past employment. Id. at 138. The altercation

became so heated that Wife came into the room and removed G.D. from the

middle of the situation. Id. at 139. Father then physically pushed Mother

out the door of the house while continuing to scream after her. Id.

As a result of this incident, Mother filed a Protection From Abuse (PFA)

petition on May 16, 2011, and the trial court issued a temporary PFA order

granting her full custody of G.D. Mother testified Father was never served

with that order, and, therefore, she did not obtain temporary custody of

G.D. Id. at 137-139. The PFA hearing occurred on May 26, 2011, and

Mother agreed to settle the PFA dispute with Father by accepting

unsupervised partial physical custody of G.D. on alternating weekends. Id.

at 157. Thus, the agreed upon May 27, 2011 temporary physical custody

order was issued under these circumstances.

As such, from the time G.D. was five months old through the custody

trial, at which time G.D. was two years old, G.D. has been in Mother’s

physical custody only on alternating weekends, while Father and Wife have

been her primary caretakers. Despite Mother’s requests for additional

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custody time on holidays and at other specific times, Father has never

agreed to any time beyond what was granted to Mother in the May 27, 2011

temporary order. N.T., 3/25/13, at 171-172, 176-178. We conclude that,

for the first two years of G.D.’s life, Father succeeded in deliberately

isolating G.D. from Mother. This inevitably caused any bond and

relationship, which this small child is entitled to have with her Mother, to

suffer. This naturally manifested in G.D. favoring Father as the more

familiar parent. Therefore, we are constrained to conclude that the

competent record evidence does not support the trial court’s finding under

Section 5328(a)(8) that neither parent has attempted to turn the child

against the other parent.

With respect to Section 5328(a)(11), the proximity of the residences

of the parties, there is no dispute that the parties live a driving distance of

approximately one and a half hours.6 The trial court acknowledged that the

parties do not live in close proximity to each other and that this may present

an obstacle, but concluded that this factor does not outweigh “the benefits of

the importance of a shared physical custody for the child’s best interests.”

Trial Court Opinion, 9/26/14, at 16. We hold the trial court’s conclusion

unreasonable because it requires G.D., then age two, to undergo a three-

hour roundtrip car ride each week between homes.
____________________________________________

6
Mother resides in Plymouth Meeting, in Montgomery County, and Father
resides in the State of Maryland.

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Based on the foregoing, we conclude the trial court abused its

discretion in failing to weigh Section 5328(a)(1), (8), and (11) in Mother’s

favor. Moreover, to the extent the trial court based its custody decision

upon the presumption that a shared physical custody arrangement is in

G.D.’s best interest, we conclude that it committed an error of law.

[C]ourts may no longer reason by presumption in
child custody cases. Not only has the tender years
presumption been explicitly repudiated, but so have
all other presumptions. In a custody dispute
between parents, no one has the burden of proof; no
presumption may be resorted to; instead, the court
must determine according to the evidence in the
particular case before it what will serve the children’s
best interests.

In re Custody of Temos, 450 A.2d 111, 121-122 (Pa. Super. 1982)

(citations omitted).

Upon thorough review, we conclude the competent evidence of record

does not support a shared physical custody award. Accordingly, we reverse

the order with regard to the award of shared physical custody, and direct

that Mother shall have primary physical custody of G.D. See M.A.T. v.

G.S.T., 989 A.2d 11, 21 (Pa. Super. 2010) (en banc) (stating that, where

the record is sufficiently developed, we may substitute our judgment for that

of the trial court and decide the case on the merits).

Based on the foregoing, we likewise conclude that the trial court

abused its discretion in granting the parties shared legal custody. The Act

defines “legal custody” as “[t]he right to make major decisions on behalf of

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the child, including, but not limited to, medical, religious and educational

decisions.” 23 Pa.C.S.A. § 5322. Section 5328(a)(13) addresses the level

of conflict between the parties and the willingness and ability of the parties

to cooperate with one another. In this case, the trial court found “there is a

level of conflict between the parties.” Trial Court Order, 9/27/13, at 6.

Specifically, the trial court stated as follows.

[The trial court] has concerns as to the level and
quality of communication between Mother and
Father, however, the [trial c]ourt does not find these
concerns significant enough to bar a shared custody
arrangement as both parties have demonstrated a
willingness and ability to communicate in promoting
the child’s best interests ….

Id. at 7.

Upon review, we conclude that the competent evidence of record does

not support the trial court’s finding that the legitimate concerns about the

level and quality of the parties’ communication are not significant enough to

bar a shared custody arrangement. In the trial court’s September 26, 2014

supplemental opinion, it reasoned, in part, “with the assistance of co-parent

counseling, both parents should be able to learn to communicate more

effectively for the best interests of the child.” Trial Court Opinion, 9/26/14,

at 18. We disagree based on the record evidence. Indeed, Mother testified

that she and Father “do not communicate at all.” N.T., 3/25/13, at 218.

Rather, Mother testified she believes it is Wife who corresponds with her in

e-mails regarding G.D. Id.

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J-A13029-14

We conclude it is in G.D.’s best interest to grant Mother sole legal

custody until such time that the situation between the parties were to

improve. Accordingly, we reverse the order with regard to the award of

shared legal custody, and direct that Mother shall have sole legal custody of

G.D. See M.A.T., supra.

Mother also requests this Court to award her counsel fees and costs

associated with the instant appeal, such as this Court awarded her in

connection with Father’s appeal from the orphans’ court order. See

Adoption of G.D., supra. In support of her request, Mother sets forth the

following argument.

Father and [Wife] engaged in the same misconduct
here – indeed, they even continue to give the same
statements and testimony already adjudicated as
perjury in the Orphans’ Court case – as they did in
the prior proceeding. This Court has already
determined that Father’s prior misconduct warranted
an award of fees. His persistent engagement in that
same misconduct in this case warrants the same
result. They had 12 witnesses (Mother had 6) and
managed to drag out this custody case for over 14
days, as the record will reflect, as well as filed
numerous petitions.

Mother’s Brief at 60-61.

Pennsylvania Rule of Appellate Procedure 2744 provides as follows.

Rule 2744. Further Costs. Counsel Fees.
Damages for Delay

In addition to other costs allowable by general
rule or Act of Assembly, an appellate court may
award as further costs damages as may be just,
including

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J-A13029-14

(1) a reasonable counsel fee and

(2) damages for delay at the rate of 6% per
annum in addition to legal interest,

if it determines that an appeal is frivolous or taken
solely for delay or that the conduct of the participant
against whom costs are to be imposed is dilatory,
obdurate or vexatious. The appellate court may
remand the case to the trial court to determine the
amount of damages authorized by this rule.

…
Pa.R.A.P. 2744.

Further, this Court has explained our standard of review.

In determining the propriety of such an award, we
are ever guided by the principle that an appeal is not
frivolous simply because it lacks merit. Rather, it
must be found that the appeal has no basis in law or
fact. This high standard is imposed in order to avoid
discouraging litigants from bringing appeals for fear
of being wrongfully sanctioned.

Griffith v. Kirsch, 886 A.2d 249, 255-256 (Pa. Super. 2005), quoting

Menna v. St. Agnes Med. Ctr., 690 A.2d 299, 304 (Pa. Super. 1997)

(citations omitted).

In this appeal, we discern no basis to award Mother reasonable

attorney fees and costs where Mother filed an appeal from the custody

order, and Father filed a cross-appeal. Father’s cross-appeal is not frivolous

or taken solely for delay. Although a panel of this Court deemed Father’s

conduct in the orphans’ court litigation to be “dilatory, obdurate, or

vexatious,” we are not persuaded Father’s conduct rises to the same level

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here where both he and Mother are dissatisfied with the custody order and

filed appeals. Therefore, we deny Mother’s request for reasonable attorney

fees and costs.

With respect to Father’s cross-appeal, we observe that the trial court

thoroughly analyzed his issues in its November 27, 2013 Rule 1925(a)

opinion. In his first issue, Father argues the trial court abused its discretion

in failing to weigh the foregoing statutory factors in his favor. Specifically,

Father alleges that Mother has failed to communicate with him regarding

G.D., that she has made the custody exchanges chaotic, and that she has

filed false abuse charges against him. Father alleges that G.D. has returned

from Mother’s custodial weekends with injuries, including “excessive

bruising, a bump on her head[,] and a black eye. Something happened

almost every weekend Mother had [G.D.].” Father’s Brief at 56. In addition,

Father alleges that Mother failed to provide the necessary care for G.D. while

in her custody, and that G.D. “would return from Mother’s weekends with

behavior issues.” Id. at 57.

The trial court concluded that all of Father’s allegations were misplaced

and/or not credible and not supported by the evidence. We conclude the

record evidence overwhelmingly supports the trial court’s analysis of

Father’s first issue on appeal. Thus, we discern no abuse of discretion. As

such, we adopt the trial court’s November 27, 2013 Rule 1925(a) opinion as

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J-A13029-14

dispositive of Father’s first issue. See Trial Court Opinion, 11/27/13, at 25-

36.

In his second issue, Father argues the trial court committed an error of

law by precluding testimony regarding Mother’s care of J.G., her then seven-

year-old son from a prior relationship, who is G.D.’s half-brother. Father

argues this testimony was relevant to the trial court’s consideration of

Section 5328(a)(3), (4), (9), (10), and (12).

When faced with a question of the admissibility of evidence, our

standard of review is very narrow. Because this decision is committed to the

discretion of the trial court, we may reverse only upon a showing of an

abuse of discretion or error of law. Freed v. Geisinger Med. Ctr., 910

A.2d 68, 72 (Pa. Super. 2006). “[T]o constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.” Id.

In its November 27, 2013 Rule 1925(a) opinion, the trial court stated

that Mother “testified as to G.D.’s sibling relationship with J.G., the childcare

arrangements she has made for her son, his schooling, his relationship with

her family, and his lack of contact with the biological [f]ather.” Trial Court

Opinion, 11/27/13, at 24. Otherwise, the trial court stated “there was no

proffer of any relevant information as to J.G. which the court should have

considered with regard to the best interest of G.D.” Id. at 24-25. We

discern no abuse of the trial court in this regard. Further, Father does not

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state on appeal what additional information regarding J.G., if any, was

relevant to this custody matter. It follows that Father does not assert how

he was prejudiced by the trial court’s preclusion of additional testimonial

evidence regarding J.G. As such, we discern no abuse of discretion or error

of law by the trial court.

In his third issue, Father argues the trial court erred in failing to enjoin

Mother from disclosing the details of the orphans’ court litigation and the

custody matter on the Internet, to the media, or to any other third party.

Father argues it is in the best interest of G.D. to maintain privacy in these

matters, and that G.D.’s privacy trumps Mother’s guarantee of freedom of

speech under the Pennsylvania and United States Constitution.

The trial court set forth the following background with respect to this

issue, which is supported by the testimonial evidence

There was testimony presented at trial that [ ]
Mother published the details of her custody dispute
with [ ] Father on a website, and, a video presented
that she gave interviews to news organizations as
well …. [ ] Mother testified that[,] “I wanted the
story out there so [G.D.] would know her mother
fought for her …[.] I also thought this would help
my case.”

Trial Court Opinion, 11/27/13, at 32-33 (citation to record omitted).

Significantly, the trial court noted that, “[t]here was also evidence presented

at trial that [ ] Father’s sister … started a website and also posted

information about the adoption and custody cases, including negative

statements made about [ ] Mother.” Id. at 38. Moreover, Father admitted

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on direct examination that he provided his sister with information posted on

the website. See N.T., 6/5/13, at 194-195. In any event, Mother testified

she does not plan to initiate any additional media coverage. See N.T.,

6/3/13, at 290-291.

Father cites In the Interest of M.B. and J.B., 819 A.2d 59 (Pa.

Super. 2003), in support of his argument that “the privacy rights of the child

are more important than the right of free speech, when failure to protect the

child’s rights would result in harm to the child.” Father’s Brief at 67. In that

case, the Pittsburgh Post-Gazette newspaper appealed from the trial court’s

order denying its motion to open juvenile dependency proceedings. We held

as follows.

[W]hile there is a rebuttable constitutional
presumption that juvenile dependency proceedings
are open to the public, our courts possess an
inherent power to control access to their proceedings
and may deny access when appropriate. Once an
interested party seeks access, however, the party
seeking to keep the proceedings closed may rebut
the presumption of openness by demonstrating that:
(1) closure serves a compelling governmental
interest, and (2) no less restrictive means to serve
that interest exists.

In the Interest of M.B. and J.B., supra at 60. We found that “the parties

seeking closure have demonstrated a compelling interest in protecting the

privacy of the minor children and that no less restrictive means than total

closure exists.” Id. As such, we affirmed the order.

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Father’s reliance on In the Interest of M.B. and J.B., is misplaced in

this case which did not involve the press seeking access to the custody

proceedings. Herein, the trial court specifically found that “based on …

Mother’s testimony that no movie deal or further media coverage was

forthcoming, and no evidence to the contrary being submitted by … Father,

the [trial] court did not abuse its discretion in not ‘enjoining’ … Mother from

pursuing what amounts to speculative endeavors.” Trial Court Opinion,

11/27/13, at 38. Therefore, for all the foregoing reasons, Father’s issues

on appeal fail.

Accordingly, we reverse the custody order with regard to the shared

legal and physical custody award. We remand this matter to the trial court

to fashion a new custody order granting Mother sole legal and primary

physical custody, and setting forth a partial physical custody schedule for

Father that is in G.D.’s best interest.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2014

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