K.M. v. C.L.

J-A11012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.M. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

C.L. : No. 1358 MDA 2017

Appeal from the Order Entered August 4, 2017

In the Court of Common Pleas of York County

Civil Division at No: 2016-FC-214-03

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.: FILED JULY 02, 2018

Appellant, K.M. (“Mother”), files this appeal from the order dated August

3, 2017, and entered August 4, 2017,1 in the York County Court of Common

Pleas, awarding Mother and C.L. (“Father”) shared legal custody, and

awarding Father primary physical custody and Mother partial physical custody

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The subject order was dated August 3, 2017. However, the clerk did not

provide notice pursuant to Pa.R.C.P. 236(b) until August 4, 2017. Our

appellate rules designate the date of entry of an order as “the day on which

the clerk makes the notation in the docket that notice of entry of the order

has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,

our Supreme Court has held that “an order is not appealable until it is entered

on the docket with the required notation that appropriate notice has been

given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

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of their minor daughter, P.L., born in August 2011 (“Child”). After careful

review, we affirm the trial court’s order.

The record reveals the following relevant factual and procedural history:

The parents were married and resided primarily in North

Carolina. Father serves in the United States Army and had several

deployments. Mother alleges that Father was abusive to her

during their marriage. While Father was deployed, Mother began

a relationship. She initially lied to Father about the relationship,

notable only because it began Father’s trust issues with Mother.

The parties separated, and Mother moved with the [c]hild, with

Father’s consent, to York County, Pennsylvania, where the

maternal grandparents reside. Father began a relationship in

North Carolina with [A.B.L.], now “Step[]mother.” Mother began

a relationship in Pennsylvania with [S.S.], now “Mother’s fiancé.”

For a brief period of time, the parties were able to cooperate

with regard to custody without a court order. The child was

primarily residing with Mother in York County, and Father had

extended periods of partial custody. Mother then had criminal

difficulties in both Pennsylvania and Maryland. The Pennsylvania

charges indirectly resulted in the first round of litigation initiated

by Mother when Father withheld custody. The second round of

litigation, currently at issue here, was started by Father when he

learned additional details about the Pennsylvania incident and

learned that Mother was to be incarcerated for 30 days in

Maryland for the Maryland charges.

In Pennsylvania, Mother was charged with Endangering the

Welfare of a Minor, specifically the child at issue. Mother testified

that she called and told Father about the charge. However, it is

clear that Mother lied to Father and everyone else about the

specifics of the incident, which occurred on November 11, 2014.

According to Dr. Yambor, who completed a § 5329 Evaluation of

Mother, Mother’s story was that she left the child for only ten

minutes while she stopped briefly to see a friend who was just out

of the military. The police officer testified that the child was alone

in the car long enough for a neighbor to notice the child crying

and to call 911. The police then took 16 minutes to respond, plus

time to search for the mother. Additionally, the police officer

testified that the temperature was in the twenties, that [] Child

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had no blanket, that Mother came out of a house where drugs

were found, and that Mother texted her friend from her phone to

lie about how long she had been away. Maternal [G]randmother,

with whom Mother resides, even at trial, did not know about the

drugs or the details of the incident. Mother eventually pleaded

guilty to this offense (enumerated in 23 Pa.C.S.[A.] § 5329) on

June 15, 2015.

In December 2015, by agreement of the parties, [] Child

went to spend time with Father. Around this time, Father was in

the process of relocating from North Carolina to Hawaii with

Step[]mother. Father then learned that Mother had pleaded guilty

to the “Endangering” charge from a friend. Therefore, he kept the

child in Hawaii without Mother’s consent beginning in December

2015. This decision resulted in a period of simultaneous

proceedings in Pennsylvania and Hawaii. The Hawaii proceedings

are not part of the record. A proceeding was held on March 11,

2016, with participation by phone of the judge and counsel in

Hawaii. This court (The Honorable Gregory M. Snyder)

determined that Pennsylvania was the best jurisdiction to proceed

for two main reasons: Father had better financial resources, and

the information regarding Mother’s threat of harm would be found

here. A second Order was entered providing the parties with

shared legal custody on March 28, 2016. In this dictated Order,

the court notes that Mother is present and states a definition of

legal custody. Physical custody is not addressed, most likely due

to Mother’s guilty plea to an enumerated offense under 23

Pa.C.S.[A.] § 5329.

The first round of litigation was resolved by a Stipulated

Order for Custody filed on May 17, 2016 (signed by the Honorable

Andrea Marceca Strong), based in part on Mother’s successful

completion of two § 5329 evaluations. Unknown at the time was

that Mother had made substantial misrepresentations and

omissions when relaying the November 2014 incident to the

evaluators. According to Dr. Yambor, Mother’s threat assessment

was in part based on Mother’s story about the November 2014

incident rather than the facts as described by the police officer.

Pursuant to this Order, Mother was awarded primary physical

custody of [] Child for the school year, and Father was awarded

physical custody for the summer. The Order provided for the

return of [] Child to Mother on May 27, 2016, noting that Father

had retained custody since December. Mother withdrew a

contempt allegation as part of this stipulation.

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[] Child then began attending kindergarten at Shrewsbury

Christian Academy. Mother somehow avoided a criminal

background check for parents and began volunteering at the

school. She “poisoned the well” for Father by leading school

officials to believe that Father had absconded with [] Child without

just cause in the past and indicating that he should not be allowed

to pick up the child without her consent. She failed to list Father

as an emergency contact as required by the May 17, 2017 Order.

When Father came to pick up his daughter at the school, Mother

was outside the school with a video camera, which resulted in

police involvement. Father then displayed anger management

issues in his dealings with school officials.

Mother was also not forthcoming to Father regarding her

Maryland criminal difficulties and incarceration. These difficulties

stemmed from Mother’s completion of a marriage license

application on which she apparently did not use her correct legal

name or correct age. She also reported her marital status as

single while still married to Father. Mother pleaded guilty to one

count of perjury in the Circuit Court for Harford County in

Maryland on December 14, 2016. She received a sentence of

three (3) years imprisonment, with two (2) years and eleven (11)

months of a suspended term, and one (1) day credit for time

served. Mother testified and her counsel indicated that Mother

was granted “probation before judgment” (“PBJ”), for this

sentence, whereby once probation had been completed, Mother

would be able to have the perjury charge expunged. Originally,

Mother was to serve the remaining thirty (30) days imprisonment

every Monday and Tuesday for fifteen (15) weeks, beginning on

January 9, 2017 at the Harford County Detention Center in Bel

Air, Maryland. However, Mother requested, and was granted, the

ability to serve the sentence consecutively. She was to begin

serve her thirty (30) day incarceration on January 9, 2017.

At that point, this second round of litigation began when

Father filed a Petition for Modification on December 21, 2016. He

also filed a Petition for Contempt and Special Relief, asking for

custody during Mother’s period of incarceration. Father alleged

that Mother violated the Mutual Consultation clause of that Order

by failing to notify him regarding the terms of her incarceration.

Father also alleged that Mother failed to notify him that [] Child

would be in the care of the maternal grandparents. Father

indicated that he found out about Mother’s period of imprisonment

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from a witness advocate and not from Mother. A Conciliation

Scheduling Order was entered on December 21, 2016, whereby a

Conciliation Conference was scheduled for January 12, 2017. The

Conciliation Conference was re-scheduled for February 6, 2017.

1

On January 22, 2017, during her period of incarceration,

Mother entered into a Guardianship of Minor Agreement with her

parents, the [c]hild’s maternal grandparents, whereby the

maternal grandparents would act as standby guardians to [] Child

during Mother’s period of incarceration. This agreement did not

include Father and was not shared with him. Father’s Petition for

Special Relief was presented to the court the next day on January

23, 2017. The [c]ourt (The Honorable N. Christopher Menges)

denied Father’s request for custody because moving [] Child to

Hawaii for a month would have required a disruption in

kindergarten.

...

1

Mother currently resides at her parents’ house in Fawn

Grove, Pennsylvania, with her parents, [S.S.] (fiancé), [] Child,

and another minor child. [] Child has her own room but rarely

sleeps there. She instead sleeps in the basement where Mother

stays. Throughout the litigation, Mother has had various jobs as

a waitress and bartender, with some periods of unemployment.

Her work hours have varied.

I

Father has served throughout the litigation in the United

States Army. He has been stationed both in North Carolina, and

he has had periods of deployment. He is currently stationed at

Fort Shaffer in Wahiawa, Hawaii, where he is a barracks manager

with the rank of sergeant. He resides there with his wife, [A.B.L.].

[] Child has her own room. Father’s normal work hours begin

Monday through Friday at 9:00 a.m. His work day is typically only

two (2) hours long ending at 11:00 a.m., but he may work as late

as 3:00 p.m.

...

Opinion, 9/5/17, at 2-8 (citations to record omitted).

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The court conducted a custody hearing on June 1, 2017, June 2, 2017,

and July 20, 2017. Over the course of the hearing, the court heard from

Detective Richard Blais, Southern Regional Police Department; Trooper Jeffrey

Luke Tillinghast; Deborah Yambor, GSC Counseling, who conducted a Section

5329 evaluation of Mother;2 Alan Umstead, Jr., School Board Chairman,

Shrewsbury Christian Academy; A.B.L., Father’s wife; Dustin John Auffarth,

Sr., Mother’s former boss; Amanda Evans, Child’s therapist in Pennsylvania;

Christine Huffman, Principal, Shrewsbury Christian Academy; Shawna Hart,

Office Manager, Shrewsbury Christian Academy; Verona Ashley Garland,

Child’s kindergarten teacher, Shrewsbury Christian Academy; Dr. Arnold T.

Shienvold, custody evaluator, who conducted a custody evaluation and was

stipulated as an expert in the field of psychology with an emphasis in custody

evaluations involving high-conflict cases; and V.M., Maternal Grandmother.

Mother and Father, represented by counsel, each additionally testified on their

own behalf and submitted exhibits which were admitted by the court. In

addition, the court spoke with Child.3

By order entered August 4, 2017, the court awarded the parties shared

legal custody of Child, and awarded Father primary physical custody and

____________________________________________

2Such an evaluation determines whether there exists a threat of harm due to

a conviction or guilty plea for certain criminal offenses. See 23 Pa.C.S.A.

§ 5329(a).

3 Both counsel for Mother and Father were present and given the opportunity

to ask Child questions.

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Mother partial physical custody of Child. Specifically, Father was awarded

physical custody during the school year in Hawaii. Mother was awarded

physical custody for up to one week per month in Hawaii with thirty days

notice to Father, any break from school consisting of at least seven days, and

during the summer. The order additionally addressed, among other things,

holidays, transportation, communication, extracurricular activities, illness,

and counseling. Thereafter, on August 29, 2017, Mother, through counsel,4

filed a notice of appeal, along with a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).5 The trial court

issued an Opinion on September 5, 2017, analyzing each of the custody

factors pursuant to 23 Pa.C.S.A. § 5328(a).6 The trial court then issued an

____________________________________________

4 Mother is represented by new counsel on appeal.

5Upon being granted leave by the trial court, Mother filed an Amended and

Supplemental Rule 1925(b) Statement on October 18, 2017.

6 While the trial court additionally provided a separate analysis of the

relocation factors set forth in 23 Pa.C.S.A. § 5337(h), Opinion, 9/5/17, at 28-

33, we determine that the instant matter does not require separate, distinct

consideration of the relocation factors. See D.K. v. S.P.K., 102 A.3d 467,

477-78 (Pa. Super. 2014) (“[A] custody case where neither parent is seeking

to relocate and only the children would be moving to a significantly distant

location if custody shifted from one parent to another does not per se trigger

[S]ection 5337 of the Child Custody Act.”) Rather, any relevant relocation

factor not already incorporated by the court’s consideration of the custody

factors may be addressed under Section 5328(a)(16). Id. Although the court

unnecessarily addressed the relocation factors, we will review its consideration

of any such factors that Mother properly preserved as if decided under Section

5328(a)(16). Mother preserved a challenge to only one of the relocation

factors, Section 5337(h)(7), which we discuss, infra. She waived any

challenge to the remaining relocation factors because she did not raise the

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Opinion in Support of Order Pursuant to Pa.R.A.P. 1925(a) on September 27,

2017, and an Opinion in Support of Order Pursuant to the Amended Pa.R.A.P.

1925(a) Statement of Errors on October 26, 2017.

On appeal, Mother raises four following issues, which we have reordered

for ease of discussion:

A. WHETHER THE DECISION OF THE COURT BELOW, GRANTING

FATHER PRIMARY PHYSICAL CUSTODY, CONSTITUTED A GROSS

ABUSE OF DISCRETION AND/OR ERROR OF LAW WHEN IT FAILED

TO PROPERLY CONSIDER, ANALYZE, AND WEIGH THE

STATUTORY FACTORS OF 23 Pa.C.S.[A.] §5328(a) IN

ACCORDANCE WITH THE STANDARD OF THE CHILD’S BEST

INTERESTS AND BASED ON THE EVIDENCE PRESENTED.

B. WHETHER THE DECISION OF THE COURT BELOW

CONSTITUTED A GROSS ABUSE OF DISCRETION AND/OR ERROR

OF LAW WHEN IT EXHIBITED BIAS, HOSTILITY,

UNREASONABLENESS, PARTIALITY, PREJUDICE OR ILL–WILL

TOWARD MOTHER.

C. WHETHER THE FAILURE OF THE COURT BELOW TO CONSIDER

THE COMPETENT, UNCONTROVERTED EXPERT TESTIMONY AND

REPORT AND RECOMMENDATION OF DR. ARNOLD SHIENVOLD

CONSTITUTED A GROSS ABUSE OF DISCRETION AND/OR ERROR

OF LAW.

D. WHETHER THE COURT BELOW COMMITTED AN ERROR OF LAW

AND/OR ABUSE OF DISCRETION WHEN IT BASED ITS DECISION

ON MERE PRESUMPTIONS AND NOT ON THE FACTS OF RECORD.

____________________________________________

remaining relocation factors on appeal. See Krebs v. United Refining

Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding

that an appellant waives issues that are not raised in both the concise

statement of errors complained of on appeal and the Statement of Questions

Involved in the brief on appeal).

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Mother’s Brief at 28.7

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

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:

The discretion that a trial court employs in custody matters should

be accorded the utmost respect, given the special nature of the

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

of the parties concerned. Indeed, the knowledge gained by a trial

court in observing witnesses in a custody proceeding cannot

adequately be imparted to an appellate court by a printed record.

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

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). In addition,

____________________________________________

7 Although Mother’s issues were stated somewhat differently in her Rule

1925(b) statements, we find that Mother has preserved her challenges to the

trial court’s order.

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[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).

Regarding the definition of an abuse of discretion, this Court has stated:

An abuse of discretion is not merely an error of judgment;

if, in reaching a conclusion, the court overrides or misapplies the

law, or the judgment exercised is shown by the record to be either

manifestly unreasonable or the product of partiality, prejudice,

bias or ill will, discretion has been abused.

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007)

(quotation omitted).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.

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(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. 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.

(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.

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(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

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 custody, 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

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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).

In its opinion, the trial court carefully analyzed and addressed each best

interest factor pursuant to Section 5328(a). Opinion, 9/5/17, at 15-28. In

examining the factors, the court determined that Section 5328(a)(1), (2), 8

(4), (9), and (10) favor Father.

First, the [c]ourt must determine which party is more likely

to encourage and permit frequent and continuing contact between

the child and another party. The parties were able to work

together without a custody order prior to Mother’s criminal

difficulties. Mother had permitted the child to go to Hawaii to visit

Father. Father then kept the child in Hawaii over Mother’s

objection.

Mother would have the court, and everyone else, believe

that Father acted unreasonably in withholding [] Child. However,

that characterization shows a lack of insight by Mother about her

____________________________________________

8 It appears that the trial court considered Section 5328(a)(2) and (2.1)

together.

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culpability. The blame for any psychological harm to the child as

a result of remaining in Hawaii, if any occurred, should be placed

at the feet of the parent who endangered the child and not at the

feet of the parent who acted to protect the child. At the time,

Father learned that Mother had a criminal conviction of an

enumerated offense under 23 Pa.C.S.[A.] § 5329 in which she had

endangered the welfare of the child at issue. The public policy as

expressed in this statute would have prevented the court from

awarding custody to Mother until a threat of harm assessment was

completed even if Father had not withheld custody. There were

already trust issues between the parties based on Mother’s

infidelity during the marriage. The testimony of the police officer

indicates that Mother downplayed the seriousness of the situation

that led to her conviction. Father also learned that Mother would

likely have an additional period of incarceration due to criminal

charges for perjury in Maryland. The court finds specifically that

Father had a reasonable basis, if not a duty, to act to ensure the

safety of his child. Father thought that his child was at risk and

based on the evidence presented, he had good cause to question

the information that he was receiving from Mother.

Additionally, given the text messages that were provided, it

is clear that Father provided telephone contact for Mother while

trying to figure out what exactly was going on with Mother, even

though the contact was not as extensive as Mother would have

preferred. Mother filed in Pennsylvania, and Father participated

in the litigation. Ultimately, Father agreed to a Stipulated Order

returning the Child to Mother’s primary care after Mother had a

§ 5329 evaluation.

On the other hand, while Mother was incarcerated in

Maryland, she executed a guardianship agreement with her

parents without informing or consulting with Father. She also

ignored the court’s Order with regard to listing Father as an

emergency contact, thereby causing issues with the school.

Additionally, she failed to accommodate Father’s request for

custody when he was in Pennsylvania in May 2017. Therefore,

this factor favors Father.

Turning to the next factor, the [c]ourt must examine 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. Dr.

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Shienvold testified that ultimately the decision comes down to

safety, and the court agrees. However, Dr. Shienvold did not have

the benefit of the police officer’s testimony, [M]aternal

[G]randmother’s testimony, or the testimony of the school

officials in making his decision as to which way to go on the safety

issue. In summary, the court believes, given all of the evidence

weighed with a consideration of credibility, that the safety issue

actually strongly favors Father and not Mother. Mother’s

judgment is highly questionable as is her credibility. For purposes

of this case, if the court takes Mother at her word, her

incompetence raises more issues than her credibility. Comparing

the police officer’s testimony, especially to Mother’s testimony

regarding the incident on the second day of trial, Mother seems to

believe her own lies. She stated as follows in response to

questions by Father’s attorney:

Q. And do you now recognize that the information

that you gave to Dr. Shienvold as well as your 5329

evaluators was not necessarily forthcoming with

respect to what happened during that incident?

A. Yes, I see that, but I also recognize - and I know

what I did, I did say 10 minutes but to me when I

walked out I was throwing up. I was sick. It may

have been longer and I recognize this, but at the same

time like my head was spinning. I recognize, yes, what

I did and which I told Dr. Shienvold that there were

drugs found in the house, yes, I do recognize.

Q. So when you say you were sick, were you sick

prior to the police?

A. No.

Q. So you were sick as a result of your reaction?

A. Yes, like a totally emotional reaction. I walked

outside and threw up.

Q. You did in fact tell three different evaluators that

you were only inside for 10 minutes?

A. Yeah, I know I told the first one ten. I thought I

told Dr. Shienvold it was between 10 and 20, but I

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wasn’t a hundred percent sure. If he remembers 10,

then that’s fine.

Q. Did you think it was appropriate in 20 something

degree weather to leave P.L. in the car for even 10

minutes?

A. No. It was a bad judgement call. I recognize that.

This can be contrasted with the testimony of the police officer from

the first day of trial:

When I confronted her about her possibly lying to me,

she denied any wrong doing. I informed her because

of the investigation, she would have to receive

charges and a child line report would be created, at

which point she said, okay she would tell me the truth.

She went to visit that resident, not to pick up a jacket,

and during the course of the investigation, she had

also relayed to me that there was marijuana in the

apartment where she was at. I had conducted field

sobriety with her, and I’m very certain that she had

not been using that night, based on what I had seen

in her, but I did find in the apartment. . . . Prior to her

leaving the scene, I had asked to see her phone with

the conversations with the resident of the apartment

complex. I don’t have it with me today, but I had

taken a photograph of the last message that she sent

him saying that she was outside with the police and

for him to tell us that she had only been there for 15

minutes.

It can also be contrasted with Mother’s verified statement on her

Criminal Record/Abuse History Verification filed February 6, 2017,

in which Mother described the incident as follows:

Fall 2014 I left my child unattended in my car. When

I returned 10 minutes later, police were on the scene

and I was charged. CYS investigated and closed with

no safety plan or services recommended.

What strikes the court is that, on July 20, 2017, Mother

came up with the excuse that she was sick at the time of the

incident to explain her time confusion when according to the police

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officer,[9] in November 2014 during the incident, Mother had the

presence of mind to text her friend asking him to lie about the

time. Mother also lied on her verified statement, sticking with the

10-minute story she told the evaluators, including Dr. Yambor and

most likely Dr. Shienvold.

Mother raised abuse issues related to Father. However,

there were never any criminal charges filed nor even a Protection

from Abuse Order requested. Maternal Grandmother testified that

she saw Father abuse Mother in North Carolina, and then left her

daughter in that situation without calling the police or putting in

place any measures to protect her daughter. Then, years later

when custody was at issue, Maternal Grandmother took it upon

herself to write to Father’s superior officer to allege abuse. The

court finds the details more convenient than credible.

Alternatively, Maternal Grandmother is an enabler who is

providing no safe guards [sic] to Mother or the child, either in her

prior situation or her current situation. Maternal Grandmother, at

the time of trial, still had her head in the sand with regard to her

daughter’s endangering incident and did not know, or did not care

about the details that put her granddaughter at risk.

No credible evidence was presented that Father ever abused

the child. Nonetheless, the court does believe that Father has

anger management issues. The school personnel and Dr.

Shienvold indicated that Father engaged in inappropriately angry

behavior toward them. The court was particularly concerned that

Father yelled at the school board president on the phone while the

child was in the car with him. However, no one, not even Mother

or Maternal Grandmother, provided any credible evidence or

testimony that Father was abusive toward the child. Step[]mother

testified that she has not witnessed any anger management issues

or abuse toward her. There is no excuse for Father’s behavior,

and he seems to play right into Mother’s hands when she sets him

up by actions such as shutting him out of the child’s involvement

in school, showing up with a video camera to tape Father at the

school, failing to be truthful with him regarding the endangering

incident, and exaggerating the issues created by Father’s anger

management issues. The court has put in place anger

management counseling for Father as a preventative measure to

____________________________________________

9We observe that the evaluation of Deborah Yambor does indicate that Mother

reported vomiting. Exhibit Q, GSC Counseling 5329 Evaluation, at 2.

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avoid incidents and to give Father the skills he needs to respond

appropriately when Mother pushes his buttons, especially in front

of or toward others involved in their custody matters.

However, anger management issues do not necessarily

translate to safety issues. There is no credible evidence that

Father has abused the child, nor that there is any abuse in his

current household. The question is which party can better provide

adequate physical safeguards and supervision of the child. In fact,

§ 5328 specifies that the court should “give weighed consideration

to those factors which affect the safety of the child.” If Father

were closer so that he could monitor Mother better, if the court

could trust that Maternal Grandmother would provide better

supervision instead of enabling Mother, and if Mother were more

truthful and forthcoming with information, then the court would

not have the same serious concerns about the child remaining in

Mother’s primary care. However, based on the current situation,

the court must give considerable weight to this factor and finds

that it strongly favors Father.

...

The next factor for consideration is the need for stability and

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

Both parties have stability issues. Father indicated that he intends

to move to North Carolina following his military service in Hawaii.

Mother is currently living in her parents’ basement, although she

indicated that she is looking at houses with her fiancé. While

Mother indicated that she intends to remain in the same school

district where she is currently living, that area is very rural.

Mother cannot ensure that she and her fiancé will locate housing

in the same school district, and the court does not find that Mother

is realistic or credible in stating that the child will definitely remain

in the same school district if in her custody for the upcoming

school year. Mother also had an interruption in her availability for

thirty days due to her incarceration. Focusing instead on the

reasons for instability, the court is really comparing a father whose

lack of stability is caused by his serving his country and a mother

with an unstable work history and two serious criminal difficulties

who may or may not continue to live in her parents’ basement.

Therefore, this factor strongly favors Father.

...

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The next consideration is which party is more likely to attend

to the daily physical, emotional, developmental, educational and

special needs of the child. This is another factor where the court

is not sure whether Mother’s stated incompetence is not worse

than her lack of credibility. If the court is to believe Mother’s

version, in completing a marriage license, she was unsure and

inaccurate with regard to her own legal name, age, and marital

status, thereby creating her perjury charge. If Mother were to

engage the same lack of attention to detail in completing the

child’s educational or medical forms, she could put the child

substantially at risk. Additionally, if the court is to believe

Mother’s version, she did not realize that the guardianship

agreement she gave to her parents, without Father’s knowledge

or consent, related at all to legal custody, even though she went

to court over custody and had legal custody defined for her in her

presence according to the Order dictated on March 28, 2016. The

court seriously doubts whether the U.S military would allow Father

to have such a lack of attention to detail. Mother similarly

admitted that she lacked judgment with regard to the November

2014 incident, ignoring the court’s Order with regard to putting

Father as an emergency contact on the school forms, and

attempting to videotape Father when he came to pick up the child

at school when she had no reason to be there. These are only the

incidents about which Father from Hawaii was able to obtain

evidence. It creates serious concerns about Mother’s judgment at

other times. Therefore, this factor strongly favors Father.

Id. at 15-22, 24-26. Conversely, the court determined that Section

5328(a)(3), (5), and (6)10 favor Mother.

Next, the parental duties performed by each party on behalf

of the child must be considered. The court was particularly

disturbed by the way that Mother poisoned the well for Father with

the child’s school while failing to inform them that she had a

serious criminal conviction that should have affected her ability to

volunteer. Father then played right into Mother’s hands by his

reaction. Together, they both made it next to impossible for the

child to have continued in her prior school without the school

personnel needing to contact the board and/or their attorney prior

to any interaction with either parent. Supporting the child in her

____________________________________________

10Despite finding that this factor favors Mother, the court found that safety

and stability considerations outweigh it as it relates to Child’s best interests.

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school appropriately is an important parental duty in which both

parents failed.

Mother has been the primary physical custodian of the child

for extended periods time. The court separates periods of time

when Father was deployed versus the periods of time when he

was state-side, even though he was stationed in Hawaii. Again,

to the parties’ credit, Father was agreeable to Mother maintaining

primary custody even during periods that he was not deployed.

In accordance with 51 Pa.C.S.[A.] § 4109, the court does not hold

any periods of deployment against Father with regard to the time

that he was unavailable to parent the child.

With regard to counseling, Mother was quicker at realizing

that counseling would be helpful for the child. Father’s resistance

to counseling under the circumstances, especially given the

distance between the parties, the child’s exposure to a dangerous

situation by Mother, and the removal of the child from Mother’s

custody for a period of time, shows a lack of insight into the

mental health needs of the child. Nonetheless, Father does seem

to have been able to put the appropriate counseling in place and

attend to [] Child’s needs during the periods of times that she has

been in Hawaii. However, this factor slightly favors Mother.

...

The [c]ourt must next consider the availability of extended

family. Mother’s extended family is in York. Mother currently lives

with her parents. While Father resides with Step[]mother in

Hawaii, he did not present extensive testimony with regard to the

child’s relationship with any of his family other than Step[]mother

and grandparents in Florida. While the court was not impressed

by Maternal Grandmother in that, according to her, she left her

daughter in an abusive situation and then inserted herself in the

custody matter by writing to Father’s superior officer, the child

would nonetheless have more of a relationship with Mother’s

extended family than Father’s. The court notes that when Father

was asked why he wanted to move to North Carolina after his

military service, he indicated that his reason for moving there was

the weather. This indicates to the court that weather seems to be

more important to Father than family connections. Therefore, this

factor strongly favors Mother.

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The next consideration is the child’s sibling relationships. []

Child has a half-sibling in Mother’s home. Father currently does

not have any children with his current wife, or any other siblings

or half-siblings in his care. Therefore, this factor favors Mother.

However, the court finds that on the whole, the safety and long-

term stability of the child provide compelling reasons to separate

the child from her half-sibling in Mother’s home during the school

year. [] Child seems happy with [F]ace[T]ime contact in both

homes, and certainly efforts can and should be made by both

parents to ensure [F]ace[T]ime contact between [] Child and her

sibling while in Father’s custody. Obviously, [] Child is in school

during the day during the school year, and the summer may

provide for more quality interactions between the siblings.

Id. at 20-23. Further, Section 5328(a)(7), (8), (12), and (13) were found to

be neutral.11

The next factor is the well-reasoned preference of the child,

based on the child’s maturity and judgment. [] Child was quite

chatty with the court, although she expressed no preference with

regard to custody. Regarding Mother’s house, [] Child indicated

that her best friend was her cousin, whom she sees once a year.

With her mom, [] Child likes to swim, go to carnivals, and watch

Ravens football games. She said that Mother’s fiancé, [S.], mostly

plays video games. While [] Child has her own room, she rarely

sleeps there, preferring to share the couch in the basement with

her mom while [S.] sleeps in the bed. [] Child does have a good

connection with her younger half-sibling and has been helping

with a party for him. Regarding Father’s house, she said that she

likes Step[]mother and that Step[]mother comes along when

Father and [] Child go somewhere fun. [] Child has pets in

Father’s home and misses them when not there. She has her own

room there but gets scared there too. She likes going to the beach

when with Father. Notably, the parents raised issues related to

Face[T]ime/Skype, but [] Child seemed comfortable with the level

of communication. [] Child was given the opportunity to express

____________________________________________

11In addition, as to Section 5328(11), the court notes that “the distance

between the parties necessitates an order where one parent has the child

during the school year with the other parent having custody over the

summer.” Opinion, 9/5/17, at 26. Further, the court determined Section

5328(a)(14) and (15) not to be substantial or significant factors. Id. at 27-

28.

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an opinion or provide additional information, and [] Child declined

to do so. Therefore, this factor is neutral.

The next factor to consider is 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.

Mother would have the court believe that Father’s keeping the

child in Hawaii would be an attempt to turn the child against

Mother. However, as stated above, the court finds that given

Mother’s guilty plea to an enumerated offense as well as her level

of deceit, Father’s actions were not only reasonable, but stemmed

from his duty as a parent to protect the child. Mother does not

seem to have any insight to the fact that, due to the child’s school

schedule, the child will need to be away from a parent during most

of the school year, no matter where she lives. Mother’s poisoning

the well at the child’s school was inappropriate as was Father’s

yelling at the school board member with the child in the car seat

in the car. Both parents need to do a better job of putting their

differences aside, especially in front of the child. Therefore, this

factor is neutral.

...

The next enumerated factor is each party’s availability to

care for the child or ability to make appropriate child-care

arrangements. Mother was not working outside the home at the

beginning of the trial but had gotten a job as a bartender by July.

Father only works two (2) hours a day most days with all his work

hours overlapping school hours. [] Child would be starting first

grade in a different school if with Mother, as both parents burned

bridges at [] Child’s prior private school. Father testified that the

public school [] Child would attend at his residence is about ten

minutes away, and that it is actually on the military base. (N.T.

6/1/17 at 78). Both parties presented evidence regarding

reasonable child-care plans. Mother has family members in the

home to care for [] Child. Father and Step[]mother are able to

provide most of the care for [] Child in their home. Father has

appropriate supplemental care ten minutes away just outside the

gate to the base. Therefore, this factor is neutral.

The [c]ourt must next consider the level of conflict between

the parties and the willingness and ability of the parties to

cooperate with one another. The level of conflict between the

parties is high. The court finds that both parties have contributed

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equally to their communication difficulties. Mother has been less

than truthful in her dealings with just about everybody, including

Father. She also has pushed Father’s buttons by attempting to

shut him out and videotape him. Father has played into her hands

by letting his anger management issues get the best of him in

dealing with Mother and others involved in the custody situation

such as school personnel and Dr. Shienvold. The court hopes that

the counseling put in place by the court will help to alleviate the

impact on the child of the communication difficulties between the

parents. The court believes that Father’s anger management

issues may be more easily remedied than Mother’s deceit and lack

of judgement [sic]. Nonetheless, currently this factor is neutral.

Id. at 23-24, 26-27. As such, the court concluded and summarized as follows:

CONCLUSION

The [c]ourt has considered the factors outlined by 5328 and

5337 of the Custody Act as outlined above in rendering a decision

that is in the best interests of the child. In summary, Mother has

established a pattern of poor judgment and deceit that that has

at times risen to the level of criminal behavior that has

compromised the stability and safety of the child. She lacks

insight into how her poor decision-making is affecting her custody

situation. If [] Child were to stay with Mother, [] Child would be

switching schools and most likely residences in the upcoming

year. She has no deep ties to people or activities outside of

Mother’s household members. Father is the more mature, safe,

and stable parent. With counseling, the court believes that

Father’s anger management issues can be addressed, while

Mother’s poor judgment is less likely to be remedied. The distance

between the parties requires that the child will be absent from one

parent for most of the school year. Therefore, for the reasons

outlined above, the [c]ourt awards shared legal custody to the

parties. Father is awarded primary physical custody subject to

Mother’s rights of partial physical custody. The schedule for

custody was outlined on the Order filed August 4, 2017.

Id. at 37-38.

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Turning to Mother’s issues raised on appeal, Mother first challenges the

trial court’s analysis of the Section 5328(a) custody factors. Mother’s Brief at

48. Mother argues:

It is clear from the record that the trial court’s analysis of

the custody factors is flawed. In its analysis the court continues

to over-emphasize Mother’s shortcomings while at the same time

downplaying Father’s faults. The evidence showed that it is in the

best interest of the child for Mother to have primary physical

custody.

Id. at 48. She continues:

In performing its analysis of the factors, the trial court failed

to appropriately consider the facts of record. It continued to focus

on past issues. To consider facts existing prior to or at the time

of the prior order leads to the re-litigation of issues already

determined and would lay the foundation for interminable and

vexatious litigation.

Id. at 66.

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

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(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, while a parent’s role in caring for a child may

be considered in light of the statutory factors, “the primary caretaker doctrine,

insofar as it required positive emphasis on the primary caretaker’s status, is

no longer viable.” Id.

As we construe this issue, we interpret the issue raised at its core as a

dispute to the trial court’s findings of fact and determinations regarding

credibility and weight of the evidence. Mother, in essence, questions the trial

court’s conclusions and assessments and asks this Court to re-find facts, re-

weigh evidence, and/or re-assess credibility to her view of the evidence. This

we cannot do. 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 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. . . .

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

thorough review of the record, we find no abuse of discretion. Further, to the

extent Mother challenges the weight attributed to any factor by the trial court,

we likewise find no abuse of discretion. 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.

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

analyzed and addressed each factor under Section 5328(a). See Opinion,

9/5/17, at 14-28. 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. Thus, this claim fails.

In her second issue, Mother claims that the trial court abused its

discretion and/or erred as it exhibited bias, hostility, unreasonableness,

partiality, prejudice or ill-will toward her. Mother’s Brief at 36. Mother argues

that the record reveals a bias and prejudice against her on the part of the trial

judge. Id. at 38. She maintains that the trial court focused on her

endangerment charge to the exclusion of two Section 5329 evaluations and a

custody evaluation, and Father stipulating to an order awarding primary

physical custody of Child to Mother despite Mother’s endangerment and

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perjury charges.12 Id. at 38-41. Mother further submits that the trial court

held her to a different standard than Father, pointing to examples of the court

requesting photographs of her home and information as to the school district

where she resides. Id. at 41-44. Moreover, the trial court found that Mother

“poisoned the well” with Child’s school as to Father, disregarding completely

Father’s behavior as well as the court’s own actions in questioning school

personnel. Id. at 42. Finally, Mother indicates that the “trial judge continually

interjected itself in the examination of witnesses, conducting lengthy

examination on issues not raised by either party,” highlighting the court’s

questioning of Maternal Grandmother. Id. at 44-45. While recognizing a trial

judge’s duty to develop the record, if necessary, Mother argues that the court

did so in a manner that was one-sided and presented, at the least, an

appearance of bias. Id. at 45-46.

As to this claim, the trial court reasoned,

The second issue raised is whether there was an error of law

or an abuse of discretion when the [c]ourt “exhibited

unreasonableness, partiality, prejudice, bias, and ill-will” to

Mother through a process of “overemphasizing” Mother’s poor

characteristics and “downplaying” Father’s poor characteristics.

This [c]ourt disagrees. In fact, there are several times throughout

the three days’ worth of trial that this [c]ourt took issue with both

parties for their actions, their poor communication, their anger

management issues, and their need for counseling. The record

contains several examples. The problem is that Father’s poor

characteristics paled in comparison to Mother’s poor judgement

[sic] and outright dishonesty time and time again when looked at

____________________________________________

12We note that these were, in fact, convictions as a result of guilty pleas by

Mother.

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from the best interest of the child, and more important the safety

of the child. Therefore, this issue should be dismissed.

Opinion in Support of Order Pursuant to the Amended Pa.R.A.P. 1925(a)

Statement of Errors, 10/26/17, at 3.

In the instant matter, we observe that there was no objection raised by

Mother during the relevant proceedings as to any of the court’s requests or

inquiries noted by Mother. At no time did Mother’s counsel protest the court’s

actions or suggest any ill motive or prejudice against Mother, nor did counsel

request that the court recuse itself due to any impropriety or appearance

thereof. As such, we find that Mother’s challenge is waived. See Pa.R.A.P.

302(a) (providing for waiver of issues not first raised in lower court); Fillmore

v. Hill, 665 A.2d 514, 515-16 (Pa. Super. 1995) (“[I]n order to preserve an

issue for appellate review, a party must make a timely and specific objection

at the appropriate stage of the proceedings before the trial court. Failure to

timely object to a basic and fundamental error, such as an erroneous jury

instruction, will result in waiver of that issue. On appeal, the Superior Court

will not consider a claim which was not called to the trial court’s attention at

a time when any error committed could have been corrected.”) (citations

omitted).

Nonetheless, even if preserved, we would find this claim to be without

merit. As discussed above, a review of the record reveals that the trial court’s

findings and determinations are supported by competent evidence in the

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

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In her third issue, Mother asserts that the trial court abused its

discretion and/or erred in dismissing the expert testimony of Dr. Shienvold.

Mother’s Brief at 67. She states:

It is an abuse of discretion for a trial court to dismiss as

unpersuasive, uncontracted [sic] expert testimony. [M.A.T. v.

G.S.T.], 989 A.2d 11[] (Pa. Super. 2010). While a trial court is

not obligated to accept the conclusions of an expert, it is required

to give due consideration to his testimony. [K.W.B. v. E.A.B.],

698 A.2d 609[] (Pa. Super. 1997). If the trial court chooses not

to follow the expert’s recommendations, its decision must be

supported by competent evidence of record. [M.A.T. v. G.S.T.],

989 A.2d 11[] (Pa. Super. 2010).

Id. Comparing the matter to K.W.B., Mother suggests, without supporting

evidence, that the court disregarded the opinion of Dr. Shienvold, the only

expert, that primary physical custody of Child should remain with Mother. Id.

at 67-68. She further maintains, “In spite of Dr. Shienvold’s clear and well-

reasoned testimony, the trial court discounted his expert opinion and allowed

its bias to affect its award of custody. The record does not support the trial

court’s decision to discount Dr. Shienvold’s testimony.” Id. at 71.

Related to Dr. Shienvold, the trial court stated, “While the court has

tremendous respect for Dr. Shienvold’s opinion, the court has reached a

different result most likely due to differences in the evidence available,

especially as it relates to credibility and a safety determination.” Opinion,

9/5/17, at 28.

In its subsequent Rule 1925(a) Opinion, the court further elaborated as

to Dr. Shienvold’s opinion as follows:

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The sixth issue addressed was whether there was an error

of law or an abuse of discretion by the court when it disregarded

the expert report and testimony of Dr. Arnold Shienvold. The

[c]ourt is not required to consider the opinion of an expert, and

the [c]ourt did in fact consider the opinion of Dr. Shienvold in its

analysis. Therefore, the [c]ourt did not abuse its discretion or

commit an error of law.

While it “may be true that, when [an] expert evaluation is

uncontradicted or unqualified, a child custody court abuses its fact

finding discretion if it totally discounts [the] expert evaluation.”

[Nomland v. Nomland, 813 A.2d 850, 854 (Pa. Super. 2002)].

“To say that a court cannot discount uncontradicted evidence,

however, is merely to rephrase the requirement that a child

custody court’s conclusion have competent evidence to support

it.” [Id.,] citing [Reefer], 791 A.2d at 374. In this case,

however, it was contradicted. Specifically, Dr. Shienvold did not

have the benefit of all of the exhibits and testimony. It was clear

from the record that Mother lied to all of the evaluators, including

Dr. Shienvold[,] about the incident that lead to her criminal

difficulties. Therefore the [c]ourt was compelled to discount his

testimony as the foundation of it was flawed. “So long as the trial

court’s conclusions are founded in the record, the lower court [is]

not obligated to accept the conclusions of the experts.” [Id.,]

citing [Murphey v. Hatala, 504 A.2d 917, 922 (Pa. Super.

1986)]. “[T]he trier of fact is not bound by the testimony of any

expert witness and is under no obligation to accept the conclusions

of an expert witness.” [Murphey], 504 A.2d at 922.

The opinion of Dr. Arnold Shienvold is qualified and

contradicted, and therefore the [c]ourt was under no obligation to

consider the expert’s opinion. The testimony of both Mother and

Father, as well as [M]aternal [G]randmother, police officers, and

even school officials shows that there are far deeper issues than

the surface that Dr. Shienvold scratched when it comes to this

family.

Despite not being required to consider the opinion of Dr.

Shienvold, the [c]ourt’s Opinion shows that the [c]ourt did

consider the expert’s analysis, among other considerations. The

[c]ourt, despite its tremendous respect for Dr. Shienvold’s

opinion, reached a different conclusion possibly based on

difference of evidence and testimony available to the [c]ourt,

especially as it relates to credibility and safety concerns. This

[c]ourt had the opportunity to observe both parties over three

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days of testimony. Mother clearly pushed Father’s buttons, but

failed to demonstrate a nexus between Father’s anger

management and the child’s safety. Notably, this [c]ourt

observed Mother’s demeanor repeatedly change from a normal

adult demeanor to a child-like demeanor every time she was

caught in a lie or circumstance of “questionable judgment.” This

obvious contrast in demeanor added to Mother’s credibility issues.

In [Nomland], the Superior Court considered a similar

challenge to a trial court’s handling of expert testimony.

[Nomland], 813 A.2d at 855. The Superior Court concluded that

while the trial court was not required to accept conclusions of

experts, like in the present case, the trial court did consider the

experts[’] opinion. [Id.] The court held that “the trial court’s

factual findings, [] based on factual analysis independent of the

experts’ analysis, support its conclusions.” [Id.]

Dr. Shienvold himself testified that the ultimate decision

should come down to the safety of the child, and the [c]ourt

wholeheartedly agrees. That is ultimately why the [c]ourt reached

a different conclusion than reached by the expert based on the

totality of the evidence presented and the credibility

determinations of the [c]ourt.

Opinion in Support of Order Pursuant to Pa.R.A.P. 1925(a), 9/27/17, at 5-7.

On this topic, we have stated:

The trial court was under no obligation to delegate its

decision-making authority to [the custody evaluator]. See, e.g.,

K.W.B. v. E.A.B., 698 A.2d 609, 613 (1997). It is an abuse of

discretion, however, for a trial court to dismiss “as unpersuasive,

and to totally discount, uncontradicted expert testimony.”

Murphey, 504 A.2d at 922; see also Rinehimer v. Rinehimer,

336 Pa. Super. 446, 485 A.2d 1166, 1169 (1984) (while not

required to accept their conclusions, “[t]he lower court was

obligated to consider the testimony of the two experts[.]”);

Straub v. Tyahla, 274 Pa. Super. 411, 418 A.2d 472, 476 (1980)

(“[W]e conclude that the lower court abused its discretion in

totally discounting as unpersuasive the expert opinion testimony

of appellant’s testifying psychiatrist.”). Accordingly, while a trial

court is not required to accept the conclusions of an expert witness

in a child custody case, it must consider them, and if the trial court

chooses not to follow the expert’s recommendations, its

independent decision must be supported by competent evidence

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of record. See Nomland [ ], 813 A.2d [at] 854 [] (“To say that a

court cannot discount uncontradicted evidence, however, is

merely to rephrase the requirement that a child custody court’s

conclusion have competent evidence to support it. So long as the

trial court’s conclusions are founded in the record, the lower court

was not obligated to accept the conclusions of the experts.”)

(citations and quotation marks omitted).

M.A.T., 989 A.2d at 19-20.

Instantly, we find that the trial court considered Dr. Shienvold’s expert

recommendation, and we conclude that its decision not to follow his expert

recommendation is supported by competent evidence of record. M.A.T., 989

A.2d at 19-20; Nomland, 813 A.2d at 854. Thus, we find no error of law or

abuse of discretion.

Lastly, with her fourth issue, Mother argues that the trial court abused

its discretion and/or erred as it based its decision to grant Father primary

physical custody in Hawaii on mere presumptions and not facts of record.

Mother’s Brief at 72. Mother purports that the trial court is “enthralled with

the thought of living in Hawaii. . . .” Id. at 72. She asserts that the trial court

suggests that residing in Hawaii would enhance Child’s quality of life and

provide a cultural and educational opportunity, without any such supporting

evidence. Id. at 72-73.13 Id. at 73. Mother avers, “Father presented no

____________________________________________

13 Mother’s fourth issue does not directly challenge the trial court’s assessment

of the relocation factors, but focuses on whether the evidence supported the

trial court’s determination that living in Hawaii would provide Child with a

better quality of life. Mother’s Brief at 72-73. Section 5337(h)(7) of the

relocation factors required the court to assess, “[w]hether the relocation will

enhance the general quality of life for the child, including, but not limited to,

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testimony that Hawaii afforded the child a better quality of life. In fact, Father

testified to very little about what the child’s life would be like in Hawaii.”

In addressing evidence as to Child’s life in Hawaii, the trial court

reasoned as follows:

The eighth issue addressed was whether there was an error

of law or an abuse of discretion when the court awarded Father

primary custody without testimony from Father regarding the

child’s living conditions and the school that would be attended in

Hawaii. Father lives on a military base in Hawaii. If he sends the

child to a public school while the child resides with Father, it will

be a school that is ten minutes away on the military base. This

[c]ourt can assume that the military is more than capable of

teaching to a six[-]year[-]old. The [c]ourt can assume that the

military provides adequate housing and schools on its military

base. Mother has produced no evidence to indicate the housing

or schooling would be inadequate for the [c]ourt to consider such

an allegation, despite the fact that she had adequate counsel and

an ample opportunity over three days of testimony.

Furthermore, Father has indicated that the child has her own

room and bathroom that she has picked out and decorated at

Father’s home. The child would not be forced to reside in the

basement of her maternal grandmother’s with her mother and

mother’s fiancé, as she does now. Therefore, this has been

addressed in testimony.

Opinion in Support of Order Pursuant to Pa.R.A.P. 1925(a), 9/27/17, at 7-8

(citations to record omitted). See also Opinion in Support of Order Pursuant

to the Amended Pa.R.A.P. 1925(a) Statement of Errors, 10/26/17, at 3-4

(citations to record omitted).

____________________________________________

financial or emotional benefit or educational opportunity,” with regard to this

claim. 23 Pa.C.S.A. § 5337(h)(7). Thus, we find that Mother does challenge

Section 5337(h)(7) in her appeal.

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Upon review, this claim is without merit. As indicated, the trial court’s

decision and analysis is supported by competent evidence of record. 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: 7/2/2018

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