NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

MICHAEL M. SENFLUG 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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J-A05034-23  

v. 

 

 

MILY G. GREBB       

 

Appellant 

 No. 2351 EDA 2022 

Appeal from the Order Entered August 1, 2022 
In the Court of Common Pleas of Monroe County 
Civil Division at 002760-CV-2020, 497 DR 2018 

EFORE:  LAZARUS, J., KUNSELMAN, J., and MURRAY, J. 

MEMORANDUM BY MURRAY, J.: 

 

 

     FILED MARCH 21, 2023 

Michael  M.  Senflug  (Appellant)  appeals  from  the  order  modifying  the 

parties’ custody of their six-year-old son, M.S. (Child).1  Appellant specifically 

challenges the award of primary physical custody to Emily G. Grebb (Mother), 

and the court’s directive that Child be enrolled in the Pocono Mountain School 

District.  After careful review, we affirm. 

____________________________________________ 

1 The order schedules a “hearing for October 21, 2022 … to review the parties’ 
progress  in  co-parenting  and  [to]  address  any  additional  custody  matters.”  
Order,  8/1/22,  at  9.    Nonetheless,  we  consider  the  order  to  be  final  and 
appealable.  See Pa.R.A.P. 341(b)(1) (a final order is any order that disposes 
of all claims and of all parties); see also G.B. v. M.M.B., 670 A.2d 714 (Pa. 
Super. 1996) (a custody order is final and appealable after the trial court has 
concluded hearings and the resulting order resolves pending custody claims). 

     

    E

   

 

 

  B

 

  

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Appellant and Mother never married.   Mother was married previously, 

and had three older children when she met Appellant in 2014.  N.T., 3/16/22, 

at 52-53.  Mother had issues with alcohol abuse and the children’s father was 

incarcerated; thus, the older children’s paternal grandfather and his wife had 

custody of the children.  Id. at 54. 

Appellant and Mother moved in together, and Child was born in August 

2016.    Around  the  same  time,  Mother  regained  custody  of  older  children.2  

N.T., 7/15/22, at 185.  The parties separated in April 2020.  N.T., 3/16/22, at 

12, 139; N.T., 7/15/22, at 61. 

PROCEDURAL HISTORY 

On  November  3,  2020,  when  Child  was  four-years-old,  the  parties 

entered a consent order which provided for shared legal and physical custody.  

The  order,  inter  alia,  stated  that  Child  “shall  be  enrolled  in  Notre  Dame  for 

kindergarten,  without  prejudice  to  either  party’s  right  to  seek  a  change  of 

schools.”    Order,  11/3/20,  at  6,  ¶  8.    The  order  also  required  that  Mother 

“continue with drug and alcohol screens, providing same on a random basis 

once or twice per week … for a minimum of one (1) year.”  Id. ¶ 9b. 

Approximately  six  months  later,  the  parties  could  not  agree  about 

whether Child should attend kindergarten in the fall of 2021.  Due to Child’s 

____________________________________________ 

2 Mother’s two oldest children are twins; they turned 18 and graduated from 
high  school  in  2022.    N.T.,  7/15/22,  at  30,  63.    Mother’s  third  child  is  a 
sophomore in high school.  Id. at 65. 

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August birthday, Mother believed it best for Child to attend a year of preschool 

and  attend  kindergarten  the  following  year  in  the  Pocono  Mountain  School 

District.  Both parties reside in the Pocono Mountain School District.  However, 

as indicated in the November 3, 2020, order, Appellant believed Child should 

attend kindergarten at Notre Dame Elementary School (Notre Dame).  

 

On May 24, 2021, Mother filed a petition seeking an evidentiary hearing, 

primary  physical  custody,  and  a  determination  that  Child  attend  a  year  of 

preschool  before  starting  kindergarten.    Petition  for  Evidentiary  Hearing, 

5/24/21.  Appellant filed a responsive petition in which he sought Child’s 2021 

kindergarten enrollment at Notre Dame, with the parties to maintain shared 

physical  custody,  or  alternatively,  an  award  of  primary  physical  custody  to 

Appellant.  Petition for Modification of Custody, 6/15/21. 

The trial court conducted three days of trial on December 8, 2021, March 

16, 2022, and July 15, 2022.   Given the trial dates and consistent with the 

November 3, 2020, order, Child commenced and completed kindergarten at 

Notre Dame. 

TRIAL TESTIMONY 

 

Ms. Brenda Hoff testified to having a master’s degree in psychology and 

counseling  the  parties  about  co-parenting.    N.T.,  12/8/21,  at  8-9,  43.    Ms. 

Hoff described “high conflict between the parents,” but noted an improvement 

in  Mother’s  “ability  to  communicate  without  anger.”    Id.  at  10,  28.    She 

observed that Appellant “struggles to negotiate and compromise.”  Id.  Ms. 

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Hoff  also  “identified  [Appellant]  as  unwilling  to  negotiate  and  reach 

compromises in general and I use [] school as an example[.]”  Id. at 72.  She 

added, “this is just an ongoing thing that’s … part of [Appellant’s] personality.”  

Id. at 74.  Ms. Hoff cited examples of Appellant being unwilling to negotiate 

and  compromise  in  matters  concerning  Child’s  participation  in  a  Halloween 

parade and community soccer, and whether Child should return to school after 

being sick the prior weekend.  Id. at 74. 

Ms.  Hoff  testified  that  Mother  “acknowledged  that  she  is  a  recovering 

alcoholic with more than two years of sobriety[.]”  Id. at 24.  She stated that 

“every single one” of Mother’s urine screens had been negative “since this last 

year.”  Id. at 25.  Ms. Hoff specified that Mother “was two years sober with a 

slip in the fall of 2019.”  Id. at 42. 

Ms. Hoff testified  that one of the “major issues we spent a significant 

amount of time trying to negotiate was [Child’s] education.”  Id. at 14.  The 

parties disputed whether Child was ready to attend kindergarten during the 

2021-2022  school  year,  and  where  Child  would  attend  kindergarten.    Both 

parties  live  in  the  Pocono  Mountain  School  District.    Id.  at  18.    Ms.  Hoff 

reiterated that the issue “has been a big sticking point since [Ms. Hoff] first 

saw [the parties] early on in their time together.”  Id. at 14.  Ms. Hoff stated 

she had “no opinion on whether [Child] should have attended kindergarten or 

where  he  should  have  attended  kindergarten,  and  I  was  very  clear  on  that 

with the parents on multiple occasions.”  Id. at 59. 

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Ms. Hoff relayed that “one of Mother’s concerns” with Notre Dame “was 

the  amount  of  time  [Child]  would  have  to  be  transported  and  how  he’s 

transported.”  Id. at 21.  According to Ms. Hoff, Mother preferred Child “attend 

school  in  the  community  where  both  parents  live,”  and  Mother  “also  noted 

that neither parent [is] Catholic, so it didn’t necessarily make sense for [Child] 

to be in a Catholic school.”  Id. at 26. 

Ms.  Hoff  testified  about  Mother’s  concern  that  Child’s  August  birthday 

was “right before the cut off” for kindergarten.   Id. at 25.  She stated that 

Mother had “previous experience with another child and thought it would be 

best for [Child] emotionally and matur[ity] wise for him to attend preschool 

prior to kindergarten.”  Id.  Ms. Hoff confirmed Child was “academically ready 

for  school,”  and  Mother’s  concern  was  for  Child  “emotionally,  socially,  and 

[his] maturity.”  Id. at 27.  Ms. Hoff explained that according to Mother, Child 

was “very tired and drained when he comes home” from kindergarten at Notre 

Dame.  Id. 

Regarding  Appellant,  Ms.  Hoff  testified  that  he  “tends  to  not  really 

negotiate  unless  he  is  guaranteed  his  desired  outcome.”    Id.  at  14.    She 

described Appellant as “unyielding.”   Id. at 59.  She relayed that Appellant 

wanted Child to attend Notre Dame “because he thinks it’s the best school[, 

and]  believes  that’s  the  best  place  for  [Child]  to  go  to  school.”  Id.  at  60.  

According to Ms. Hoff, Appellant “believed [Child] was emotionally [prepared] 

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testified that Appellant, 

and mature and ready to go to kindergarten.”  Id. at 60-61.  Ms. Hoff further 

wanted to know what he needed to agree to in order for [M]other 
to agree for [Child] to go [to Notre Dame].  In fact, at one point, 
he was willing to drop the urine screens for [M]other if she would 
agree for [Child] to go to Notre Dame Elementary School, which I 
found odd because we tried to negotiate that point early on and 
he refused to drop the urine screens, indicating that he believes 
that they were, quote, absolutely necessary. 
 

N.T., 12/8/21, at 21-22. 

Mother’s  18-year-old  son,  Tyler  Grebb,  testified  to  attending  Pocono 

Mountain East High School.  Id. at 128, 139.  He stated that Mother, his father 

(who is no longer incarcerated), and his paternal grandparents, “all get along 

[and are] there for each other.”  Id. at 133.  He confirmed that at the time of 

the  December  8,  2021,  hearing,  Mother  was  “closing  in  on  three  years  of 

sobriety.”  Id. at 136.  He stated there was no alcohol in Mother’s home, and 

it would be “pretty obvious” to him if Mother was drinking.  Id.  

Mother’s  former  father-in-law,  Don  Dellipriscoli,  testified  to  being  the 

paternal  grandfather  of  Mother’s  three  older  children.    Id.  at  153.    Mr. 

Dellipriscoli’s son (and Mother’s former husband) was incarcerated from 2008-

2010, and from 2013-2020.  Id. at 154.  As a result of his son’s incarceration 

and Mother’s alcohol abuse, Mr. Dellipriscoli and his wife obtained custody of 

the older children.  However, in 2016, Mother regained “almost a 50/50 share” 

of custody.  Id. at 175.  Mr. Dellipriscoli described their shared custody: 

The last two years, it was very good.  It was very productive.  …  
[T]he  last  few  years  that  we  were  co-parenting,  communication 

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was  there,  the  trust  was  there,  and  it  was  pretty  smooth,  very 
fluid through the last few years. 
 
Id. at 154. 

 

He continued: 

When [Mother] was using and she was struggling, she was 
 
still a good parent, but it was sporadic.  She --- you know, for the 
most  part  she  was  good,  but  then  she’d  have  periods  that  she 
wasn’t because of her … substance abuse.  But even going through 
everything, my wife and I always were with her. 
 

And she finally got what I was saying to her when she got 
sober.  [M]y wife and I were never out to take the kids away from 
her.  We were there to protect the kids.  The [c]ourt got involved 
and we were there to protect them.  And I was always telling her 
the only person that is keeping the kids away from you is yourself 
and your drinking. 
 

And now she understands that, and so she’s a great parent 
when  she’s  sober.    She  was  a  good  parent  when  --  during  the 
struggles, but sporadically.  You know, she would have spells.  I 
tell her I’m proud of her that she’s sober -- and she puts so much 
effort into her sobriety.   

Id. at 163. 

Appellant’s  father,  Myles  Senflug  (Paternal  Grandfather),  testified  to 

having a “good relationship” with Mother, and getting “along actually pretty 

well.”    N.T.,  3/16/22,  at  10.    In  April  2020,  after  the  parties  separated, 

Paternal Grandfather moved in with Appellant; he has since helped care for 

Child when Appellant has custody.  Id. at 12-13, 21.  Paternal Grandfather 

testified that Child really enjoyed attending Notre Dame.  Id. at 33.  Paternal 

Grandfather opined that it would be “devasting” for Child if he was required 

to change schools.  Id. at 33-34. 

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Appellant testified to meeting Mother in 2014.  Id. at 54.  He stated that 

“the relationship took flight pretty rapidly,” and the parties moved in together.  

Id.  Appellant bought a home in the Pocono Mountain School District where 

he continues to reside.  Id. at 55.  He stated that he bought the home with 

“enough bedrooms so [Mother could] regain custody of her [older] kids.”  Id. 

Mother  entered  rehab,  and  by  2016,  she  had  custody  of  the  older  children 

“around 50-50.”  Id. at 56.  Child was born in August 2016.  Id. 

Appellant testified that Mother relapsed in  February 2019.  Id. at 60-

62.    After  attending  a  28-day  inpatient  program,  Mother  returned  to  the 

parties’ home.  Id. at 62-63.  Appellant and Mother separated in April 2020.  

Id. at 139.  The trial court asked Appellant whether he “had seen anything 

[recently] … to give [Appellant] concern about [Mother’s] sobriety?”   Id. at 

112.    Appellant  responded  that  he  had  concerns  for  Mother’s  “attention  to 

detail,” but did not see anything “evidentiary” to indicate Mother was drinking.  

Id. 

Appellant  works  for  a  trucking  company  and  has  a  flexible  schedule.  

N.T., 7/15/22, at 31.  Appellant and Mother communicate primarily through 

the Our Family Wizard website.  Id. at 32, 38, 99, 112.  Appellant testified at 

length  about  his  parenting  capabilities,  activities  with  Child,  and  his  views 

about Child’s best interests.  N.T., 3/16/22, at 49-190.  Specifically, Appellant 

opined it was in Child’s best interests to attend Notre Dame, where Child is 

doing “outstanding” academically and socially.  Id. at 115-22.  According to 

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Appellant, “one of the huge pros about Notre Dame is their COVID mitigation 

… and what they do to mitigate risk[.]”  Id. at 119.  Appellant also extolled 

Notre Dame’s small class size and superior academics.  Id. at 123-24. 

Jessica Pedersen testified that the parties agreed to her counseling Child 

on a weekly and biweekly basis, beginning in February 2022.3  N.T., 7/15/22, 

at  11-12;  see  also  id.  at  100.    Ms.  Pedersen  described  Child  as  “very 

intelligent … very friendly[, and] pretty well adjusted.”  Id. at 19.  She also 

relayed Child’s statement that his paternal grandmother (Appellant’s mother) 

told Child to tell Ms. Pedersen “who he wants to live with.”  Id. at 21. 

Mother testified that since separating from Appellant in April 2020, she 

has lived with her children in a rented farmhouse on a 70-acre hay farm.  N.T., 

7/15/22, at 61.  Mother works in her family’s ceramic import business.  Id. at 

62.  Her two oldest children turned 18 and graduated from Pocono Mountain 

East High School in 2022.  Id. at 63.  Mother testified that the twins would be 

leaving  to  attend  college,  while  her  third  child  would  be  a  high  school 

sophomore.  Id. at 64-65. 

Mother admitted to struggling with alcoholism and described sobriety as 

“the most important aspect” of her life.  Id. at 66-67.  She has been to rehab 

three times (in 2008, 2015, and 2019).  Id. at 86.  Mother testified that her 

____________________________________________ 

3  Ms.  Pedersen  was  working  under  her  supervisor’s  license  at  Forensic 
Counseling  Associates  while  she  completed  her  master’s  degree  in  mental 
health counseling.  N.T., 7/15/22, at 9-10.    

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sobriety in 2015 was  short-lived; after Appellant picked her  up from rehab, 

the couple went to the Mount Airy Casino and “got drunk.”  Id. at 87.  The 

couple remained together for four years while Mother continued to drink.  Id. 

at  161.    Mother  most  recently  attended  rehab  in  February  2019.    Id.    She 

“stayed sober until September, [when she had] a one-day slip.”  Id. at 88.  

She has been sober since; her sobriety date is September 7, 2019.  Id. at 88, 

157, 160.  Mother testified to being “very active” in Alcoholic Anonymous.  Id. 

at  67  (explaining  she  co-founded  a  “home  group,”  and  attends  district 

meetings and conferences).  Mother stated that “a lot of the service that I do 

is to help other people, but in reality, it’s helping me too.”  Id. at 70. 

With respect to physical custody, Mother testified that Child’s transitions 

between households on the shared custody schedule were “rough.”  Id. at 88.  

Mother desired primary physical custody with fewer transitions between the 

parties’  households,  and  Child’s  enrollment  in  the  Pocono  Mountain  School 

District.  Id. at 89.  Mother testified that prior to Child attending Notre Dame, 

Mother 

thought there was going to be a chance to voice my opinions and 
have them listened to and considered.  But from the very first time 
it was brought up, … there was a wall, an absolute no discussion 
[sic]  this  is  the  court  order,  [Appellant  would  not]  consider 
[otherwise]. 
 
Id. at 121. 

Mother’s  concerns  increased  after  Child  began  attending  Notre  Dame.  

She  described  “numerous”  reasons  she  preferred  Pocono  Mountain  School 

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District,  particularly  the  “logistics”  and  impact  of  Child  commuting  to  Notre 

Dame, which is 32 minutes by car, or hour and a half by school bus.  Id. at 

89-90, 131.  Child’s morning bus pick-up time is 6:20 a.m. for Notre Dame; 

for the Pocono Mountain elementary school it would be 8:15 a.m.  Id. at 91.  

With  Child  attending  Notre  Dame,  he  had  to  go  “to  bed  so  early,”  and  his 

schedule was “so pressured … his schedule  [was not] friendly to … a young 

kid.”  Id. at 92. 

Mother also asserted that the Pocono Mountain School District offered 

“more  opportunities”  in  academics  and  athletics.    Id.  at  90-91.    Mother 

recognized  Child  was  doing  “quite  well”  at  Notre  Dame,  which  “has  some 

positives too[, such as] the small class size.”  Id. at 91, 93, 124.  However, 

she stated, “it’s hard enough for a kid to grow up in two homes, in two different 

towns, and then you take that kid and now put him in a school outside of both 

those towns.  It’s going to make it hard for him to set down roots, and I think 

that’s very important.”  Id. at 91.  Mother also perceived that the Catholicism 

of Notre Dame was confusing to Child, because neither Mother nor Appellant 

are Catholic.  Id. at 90. 

Mother  believed  Child  would  do  best  “with  one  primary  parent  during 

the school week.”  Id. at 97.  She testified: 

It’s  a  lot  to  switch  …  from  one  house  to  another  to  begin 
with.  And when you do it during the middle of the school week, it 
just adds a lot of pressure on a kid.  …  I think I’m better equipped. 

 

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Id. at 97. 

[T]here’s been a lot of testimony about comments made to 
[Child],  things  discussed  with  [him]  that  really  shouldn’t  be 
discussed  with  a  young  child.    I  have  experience.    …    I  have  a 
better capability of being [Child’s] primary custodian.  [Appellant] 
is  a  great,  fun  dad,  you  know,  to  do  fun  stuff  with  on  the 
weekends.  I just feel like I’m better equipped.  I think I can work 
better with [Appellant].  I think I’m more reasonable and flexible. 

 

Mother explained that she sought primary physical custody “because I 

think  it’s  what’s  best  for”  Child.    Id.  at  104.    She  claimed  she  “could  work 

better with” Appellant, and would “like [the parties] to get to the point where 

we can work it out amongst ourselves … [Child’s] best interests are what are 

important … not winning.”  Id.  The trial court agreed.4 

TRIAL COURT DISPOSITION 

On July 27, 2022, the court announced its “decision and final custody 

order, [] putting the reasons for [the] decision on the record.”  See Trial Court 

Opinion,  9/20/22,  at  1  (unnumbered).    The  court  then  entered  the  order 

memorializing its verbal ruling.  The court granted primary physical custody 

to  Mother.    Order,  8/1/22,  at  ¶  2.    The  court  further  ordered  that  Child  be 

enrolled in the Pocono Mountain School District for the 2022-2023 school year, 

and  “remain  enrolled  in  the  Pocono  Mountain  School  District  absent  further 

order of Court modifying that provision.”  Id. at ¶ 7.  Appellant timely filed a 

____________________________________________ 

4 After the close of evidence, the trial court stated its “intention to … read the 
transcripts” and review “35 pages of notes.”  N.T., 7/15/22, at 198.  The court 
stated it would “have [the] parties come back … [for the court’s] decision [with 
the] reasons on the record in case there’s an appeal.”  Id.   

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notice  of  appeal  and  concise  statement  of  errors  pursuant  to  Pa.R.A.P. 

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

ISSUES 

Appellant presents five questions for review: 

A.  DID THE TRIAL COURT COMMIT AN ERROR OF LAW AND ABUSE 
OF  DISCRETION  IN  ITS  DECREE  THAT  THE  CHILD  SHALL  BE 
REQUIRED  TO  TRANSFER  SCHOOLS  FROM  NOTRE  DAME 
ELEMENTARY SCHOOL TO [AN] ELEMENTARY SCHOOL IN THE 
POCONO  MOUNTAIN  SCHOOL  DISTRICT,  RATHER  THAN 
CONTINUE TO ATTEND NOTRE DAME ELEMENTARY FOR FIRST 
GRADE? 
 

B.  DID THE TRIAL COURT COMMIT AN ERROR OF LAW AND ABUSE 
OF  DISCRETION  IN  ITS  AWARD  OF  PRIMARY  PHYSICAL 
CUSTODY  TO  MOTHER,  RATHER  THAN  CONTINUING  THE 
PARTIES’  SHARED  PHYSICAL  CUSTODY  OR  ALTERNATIVELY, 
SELECTING  [APPELLANT]  AS  THE  PRIMARY  PHYSICAL 
CUSTODIAN?  
 

C.  WERE 

THE 

TRIAL 

FACTUAL 

FINDINGS  
COURT’S 
UNSUPPORTED  IN  THE  RECORD  AND  AGAINST  THE  WEIGHT 
OF THE EVIDENCE, CONSTITUTING AN ABUSE OF DISCRETION 
REGARDING  THE  RECORD  EVIDENCE  PERTAINING  TO  THE 
STATUTORY  CUSTODY  FACTORS  FOUND  AT  23  Pa.C.S.  § 
5328(a) SUBSECTIONS 1, 4, 5, 10, 11, 12, 13, 14, 15 and 16 
(PERTAINING TO THE CONSIDERATION OF WHICH PARENT IS 
MORE  LIKELY  TO  PROTECT  THE  CHILD  FROM  THE  COVID  19 
VIRUS)? 

. WERE  THE  TRIAL  COURT’S  INFERENCES  AND  CONCLUSIONS  
MANIFESTLY  UNREASONABLE  AND  AN  ABUSE  OF  THE  TRIAL 
COURT’S  DISCRETION,  CONSIDERING 
THE  RECORD 
EVIDENCE  PERTAINING  TO  THE  STATUTORY  CUSTODY 
FACTORS FOUND AT 23 Pa.C.S. § 5328(a) SUBSECTIONS 1, 4, 
5,  10,  11,  12,  13,  14,  15  and  16  (PERTAINING  TO  THE 
CONSIDERATION  OF  WHICH  PARENT  IS  MORE  LIKELY  TO 
PROTECT THE CHILD FROM THE COVID 19 VIRUS)? 

.  DID THE TRIAL COURT’S JUDGMENT MISAPPLY OR OVERRIDE 
THE  LAW,  RENDERING  THE  DECISION  MANIFESTLY 

  D

  E

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UNREASONABLE  IN  ITS  APPLICATION  OF  ITS  STATUTORY 
CUSTODY  FACTORS  FOUND  AT  23  Pa.C.S.  §5328(a) 
SUBSECTIONS  1,  4,  5,  10,  11,  12,  13,  14,  15  and  16 
(PERTAINING TO THE CONSIDERATION OF WHICH PARENT IS 
MORE  LIKELY  TO  PROTECT  THE  CHILD  FROM  THE  COVID  19 
VIRUS)? 

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. 

.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted). 

Likewise, 

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. 

he  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. 

 

  o

  T

 

  S

 

Appellant’s Brief at 15-16 (reordered).5 
 

In reviewing Appellant’s issues, 

J-A05034-23 

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5 Appellant withdrew his sixth issue in which he claimed the trial court failed 
to  “set  forth  its  mandatory  assessment  of  the  statutory  custody  factors[.]”  
Appellant’s Brief at ii-iii, 16. 

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he  test  is  whether  the  evidence  of  record  supports  the  trial 

court’s conclusions. 

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

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) (quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa. 

Super. 2004)). 

Appellant’s  issues  implicate the trial court’s credibility determinations, 

findings of facts, and exercise of discretion.  In his first issue, Appellant assails 

the  court’s  directive  that  Child  be  enrolled  in  the  Pocono  Mountain  School 

District.  This Court has explained: 

While  the choice of where a child will attend school is not trivial 
and certainly is a major life decision, the [trial] court’s decision … 
merely resolve[s] an impasse between the parties who share[] the 
legal  right  to  make  this  decision.    Stated  another  way,  the  trial 
court merely arbitrate[s] a dispute between  [parents] regarding 
schooling, instead of granting one of them the right to make that 
decision. 
 

S.W.D. v. S.A.R., 96 A.3d 396, 403–04 (Pa. Super. 2014).  “This type of court 

intervention does not affect the form of custody and hence, the 5328(a) best 

interest factors do not all have to be considered.”  Id. at 404. 

 

Appellant  asserts  the  trial  court  erred  given  “all  of  the  evidence 

presented  by  [Appellant]  regarding  [C]hild’s  year  of  kindergarten,  [which] 

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supported  the  fact  that  [Child]  did  extremely  well  at  Notre  Dame  and  was 

thriving.”  Appellant’s Brief at 40.  Appellant disregards that “parties cannot 

dictate  the  amount  of  weight  the  trial  court  places  on  evidence.”  

A.V. v. S.T., 87 A.3d at 820. 

Neither the trial court nor Mother dispute Child’s success at Notre Dame.  

Two  weeks  after  trial,  the  trial  court  announced  its  decision  on  the  record, 

stating it had “read everything over and over.”  N.T., 7/27/22, at 2.  The court 

decided  the  parties  would  continue  to  share  legal  custody,  explaining  that 

Appellant “use[d] legal custody and even physical custody … as a power tool, 

and [custody] is not and never should be, and that’s what concerns me.”  Id.  

The court continued: 

[O]ne of the things that was most startling to me -- and this went 
back to the December [8, 2021,] hearing -- was [Appellant] was 
willing to drop the use of urine screens for Mo[ther] if she agreed 
for [Child] to go to Notre Dame.  That is a purest abuse of power 
in a custody case, because that is [Appellant] getting what [he] 
  … 
wants  without 
[T]hroughout,  based  on  the  …  demeanor  and  the  manner  of 
testimony and the testimony itself provided by [Appellant] and his 
witnesses  made  me  agree  wholeheartedly  with  Miss  Hoff’s 
assessment and with what [M]other testified to at the end. 
 

focusing  on  what’s  best 

for  [Child]. 

N.T., 7/27/22, at 2-3. 

 

Accordingly,  the  trial  court  decided  that  Child  would  attend  school  in 

Pocono Mountain School District.  Id. at 4.  The court specified: 

7,  schooling.    The  minor  child  shall  be  enrolled  in  the  Pocono 
Mountain School District commencing with the 2022-2023 school 
year.    The  child  shall  remain  enrolled  in  the  Pocono  Mountain 
School  District  absent  further  order  of  court  modifying  that 
provision.   

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v. S.A.R., supra. 

Id. at 6-7; Order, 8/1/22, at 6 ¶ 7.  The evidence and law support the trial 

court’s resolution of the parties’ impasse regarding Child’s schooling.  S.W.D. 

 

We  next  address  Appellant’s  challenge  to  the  trial  court’s  award  of 

primary physical custody to Mother.  Appellant argues the trial court abused 

its  discretion  because,  “Overall,  the  opinion  of  the  [t]rial  court  reached 

numerous conclusions that were largely unsupported by the record, and based 

purely on perception.”  Appellant’s Brief at 39.  Appellant claims the evidence 

“pointed to [Appellant] as taking the more active parental role.”   Id. at 40.  

He also assails the trial court’s opinion as being “largely against the weight of 

the evidence.”  Id. at 41.  We disagree. 

Child custody is governed by the Child Custody Act (Act), 23 Pa.C.S.A. 

§§ 5321-5340.  Trial courts are required to consider “[a]ll of the factors listed 

in section 5328(a) ... when entering a custody order.”  J.R.M. v. J.E.A., 33 

A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).  The statute provides: 

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 

  (

§ 5328. Factors to consider when awarding custody. 

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J-A05034-23 

 

 

continued risk of harm to the child or an abused party 
and which party can better provide adequate physical 
safeguards and supervision of the child. 

(2.1) The information set forth in section 5329.1(a)(1) 
and  (2)  (relating  to  consideration  of  child  abuse  and 
involvement with protective services). 
 

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

of the child. 

(4)  The  need  for  stability  and  continuity  in  the  child’s 

education, family life and community life. 

(5)  The availability of extended family. 

(6)  The child’s sibling relationships. 

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

child’s maturity and judgment. 
 

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

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

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

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

 

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

to make appropriate child-care arrangements. 

(13)  The  level  of  conflict  between  the  parties  and  the 
willingness and ability of the parties to cooperate with 
one  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. 

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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. 

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). .... 

n  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 ([Pa.] 2013).  A court’s explanation 
of  reasons  for  its  decision,  which  adequately  addresses  the 
relevant factors, complies with Section 5323(d).  Id. 

  I

.V., 87 A.3d at 822-23. 

Instantly, the trial court explained: 

I’m going  to simplify things.   Mo[ther] is going to have primary 
physical  custody.    [Appellant]  is  going  to  have  alternating 
weekends.  …  And since [Appellant] is -- I think both [parents] 
are  15  minutes  away,  [so  Appellant  will  have  custody]  from 
Thursday, at six, until Sunday at six so that he at least has one 
night after school.  He can help [Child] with homework and still be 
a part of that. 
 

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16)  Any other relevant factor. 

3 Pa.C.S.A. § 5328(a). 

We have explained: 

 

  2

 

 

  A

 

  (

  (

J-A05034-23 

And then if Mo[ther] is working, at her discretion, she may give 
[Appellant] the option of custody, but … I’m going to ask that if 
Mo[ther] wants to give [Appellant] custody that she gives him as 
much leeway, I’m not going to put a number on that. 

ut  if  you  know  what  your  schedule  is,  Mo[ther],  30  days  in 
advance,  and  you  …  have  no  problem  with  [Appellant]  having 
[Child]  for  the  weekend  because  you’re  going  to  be  working,  … 
then  treat  [Appellant]  like  you  would  want  to  be  treated.    You 
would want to know as far out in advance as [possible]. 
 

  B

N.T., 7/27/22, at 4. 

 

Regarding the statutory factors, the trial court found factor 1 (the party 

more likely to encourage contact between the child and other party), to favor 

Mother.    Id.  at  11-12.    The  court  found  that  factors  2  (present  and  past 

abuse), 3 (parental duties on behalf of the child), 4 (child’s need for stability), 

and 5 (availability of extended family) did not favor either party.  Id. at 12-

13.  The court also found factor 6 (sibling relationships) did not favor either 

party,  “because  both  parties  [live]  close  to  each  other,  [and  Child]  would 

always have a relationship with his older siblings.”  Id. at 13.  Similarly, the 

court did not favor either party as to factor 7 (preference of child) “because 

of  his  age,”  and  factors  8  (attempt  of  parent  to  turn  the  child  against  the 

other)6, and 9 (party more likely to maintain a loving and stable home).  Id. 

at 14-15. 

____________________________________________ 

6 The trial court advised, “please don’t … think that I’m crediting that towards 
[Appellant] or against [Appellant], because I’m not.  But … folks, your child 
will perceive your feelings towards the other parent.”  N.T., 7/27/22, at 15.  
However,  the  court  added,  “that  factor  may  work  against  [Appellant] 
somewhat.”  Id. 

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J-A05034-23 

Regarding factor 10 (party more likely to attend to child’s daily needs), 

the  court  found  “both  parents  are  able[,  although  Mother]  comes  more 

organically than [Appellant], but I do think that he can do it.”  Id. at 16-17.  

The  court  observed  factors  11  (proximity  of  parties’  residences)  and  12 

(party’s  availability  to  care  for  child  or  make  appropriate  child-care 

arrangements)  did  not  “favor  either  party.  I  think  both  parties  are  able  to 

make  care  arrangements  for  the  child,  particularly  because  you  have  each 

other within 15 miles of one another.”  Id. at 17. 

 

Critically,  the  court  weighed  factor  13  (conflict  between  parties  and 

parties’  willingness  and  ability  to  cooperate),  in  Mother’s  favor.    The  court 

stated the “level of conflict is the next factor, and that is through the roof.”  

[A]s Miss Hoff said, I don’t think [Appellant] understands that he 
can  improve  or  …  that  he’s  doing  anything  that  is  exacerbating 
difficult problems.  [A]gain, I believe Miss Hoff’s testimony, I think 
her perception is accurate.  …  I don’t think [Appellant] perceives 
his shortcomings.  I think Mo[ther] is aware of her shortcomings, 
painfully so. 

  [B]ecause  of  what  I  believe  to  be  [Appellant’s]  inability  to  see 
how his parenting style is not helpful in a co-parenting context, I 
don’t know that he’s as able to cooperate and address the conflict 
as [M]other is. 
 
Id. at 17-18. 

  …

Id.  The court explained: 

 

The  court  next  addressed  factor  14  (party’s  drug  or  alcohol  abuse), 

acknowledging that Mother “has an issue with alcohol.”  Id. at 18.  The court 

referenced “the time [Appellant] picked Mo[ther] up from rehab, [and] they 

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went straight to the casino,” as indicating Appellant “did not appreciate how 

to  care  for  somebody  who  just  comes  out  of  rehab[.]”    Id.    The  court 

concluded “this factor, if anything, may slightly favor [Appellant], but again, 

Mo[ther] is doing everything you want of somebody who has an addiction, she 

was painfully honest and open about it and credible in her testimony.”  Id. 

 

Addressing factor 15 (party’s mental and physical condition), the court 

stated there was no indication “either party was unable to physically care for 

[Child,] and I … already discussed the  [parties’] mental [and] psychological 

outlook or perception towards custody.”  Id. at 19-20. 

Finally, with respect to factor 16 (any other relevant factor), the court 

stated it had 

some  concerns  that  there  may  be  some  coaching  [of  Child]  …  
going on at [Appellant’s] house, based on … testimony at our last 
hearing.    And  I  don’t  know  that  it’s  intentional,  but  certainly, 
again, that’s another reason why I think that factor may slightly 
favor Mo[ther].   

o those are my reasons, folks. 

 

  S

N.T., 7/27/22, at 20. 

We  discern  no  error  or  abuse  of  discretion  by  the  trial  court.    We 

reiterate that this Court may not reweigh evidence, and “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.”  M.J.M., 

63 A.3d at 337 (citation omitted).  A custody award depends upon the weight 

the trial court gives to the statutory factors; the record in this case supports 

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court accurately explained: 

the trial court’s decision to award Mother primary physical custody.  The trial 

We  held  multiple  evidentiary  hearings  in  this  matter,  with 
evidence and testimony presented by both sides.  At each hearing, 
we  assessed  the  evidence  presented  by  both  parties,  and  the 
demeanor  and  credibility  of  each  witness’  testimony.    We  then 
announced our custody decision and reviewed each of the custody 
factors  set  forth  in  23  Pa.  C.S.  §  5328(a)  as  it  impacted  our 
decision on the record at the hearing on July 27, 2022.  We stand 
by the reasons stated of record, our analysis of the evidence, the 
weight we gave to the evidence, and our determination as to the 
credibility of the parties and witnesses. 

uring  the  July  27,  2022  hearing,  we  spoke  towards  every 
enumerated factor  set forth in § 5328(a), putting our reasoning 
and our weighting of each factor on the record.  We discussed our 
credibility assessment.  In short, we found … Mother’s testimony 
was credible and her decisions regarding custody were made with 
[C]hild’s best interest in mind.  We did not find [Appellant] to be 
as  credible  as  Mother  or  able  to  make  decisions  that  were  in 
[C]hild’s  best  interest.    Simply  put,  we  found  Mother  extremely 
credible  and  candid,  and  found  [Appellant]  lacking  in  credibility 
and  candor.    Further,  while  we  acknowledge  that  counsel  for 
[Appellant] did an excellent job of questioning Mother as to each 
statutory  custody  factor,  relentlessly  focusing  on  her  addiction 
issues, the black and white transcript is devoid of the demeanor 
and  tone  of  the  parties  and  witnesses  we  observed  during  the 
proceedings.  It is that demeanor and tone that largely formed our 
credibility determinations. 

dditionally,  … [Appellant lacks the] ability to co-parent  without 
having “control” as to custody of the parties’ child.  We perceived 
many of [Appellant]’s actions pertaining to custody were done for 
the  primary  purpose  of  “winning”  this  custody  litigation.    As  we 
stated,  we  found  that  “some  of  the  things  [Appellant]  did  in 
performing those parental duties was to make himself look good 
for purposes of custody.”  There are never winners when parents 
resort to custody litigation. 

e  also  noted  we  “don’t  think  [Appellant]  perceives  his 
shortcomings.    [Mother]  is  aware  of  her  shortcomings,  painfully 
so.”    For  example,  we  found  [Appellant]  picked  Mother  up  from 

  D

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rehabilitation and took her directly to a casino where both parties 
imbibed alcohol, a fact [Appellant] failed to acknowledge.  Absent 
an  ability  to  acknowledge  shortcomings  or  vulnerabilities,  and 
concede control, we do not believe [Appellant] has the ability to 
effectively co-parent or make decisions based on the best interest 
of [C]hild.  
 

Trial  Court  Opinion,  9/20/22,  at  3-4  (unnumbered,  citations  to  notes  of 

testimony omitted). 

 

In his remaining three issues, Appellant assails the trial court’s decision 

“pertaining to the consideration of which parent is more likely to protect the 

child from the Covid 19 virus.”  Appellant’s Brief at ii.  In his arguments under 

the  corresponding  headings,  Appellant  barely  references  Covid.    See  id.  at 

57-78.    Appellant’s  Covid  arguments  consist  of  his  claims  that  he  “testified 

extensively  regarding  COVID-19,  when  Mother  and  her  family  refused  to 

follow  CDC  guidelines.”    Id.  at  70.    He  also  asserts  Mother  “knowingly 

exposed” Child to relatives who “had just returned from Florida and had not 

quarantined for the requisite amount of time.”  Id.  Appellant’s assertions are 

misleading.7  Moreover, he cites no legal authority.  It is well settled that an 

appellant must develop arguments in his brief with citation to the record and 

____________________________________________ 

7 Appellant testified that when the Covid-19 pandemic began in 2020, he and 
Mother disagreed about precautions such as masking.  N.T., 3/16/22, at 93-
95.    However,  Appellant  testified  at  trial  in  2022  that  he  and  Mother  “were 
kind of in agreement” with Child being too young to be vaccinated.  Id. at 96.  
He  stated,  “we  just  haven’t  come  to  an  agreement  yet  on  when  the  time 
should be for him to get vaccinated.”  Id. at 96-97.  Also, Mother testified to 
having Covid in April 2022, with  mild symptoms  that led her to believe she 
had a cold.  N.T., 7/15/22, at 143-44.  When Mother learned she had Covid, 
she emailed Appellant and advised him she had Covid.  Id. at 146. 

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relevant  authority.    Pa.R.A.P.  2119(a).    The  Rules  of  Appellate  Procedure 

provide that each question an appellant raises is to be supported by discussion 

and  analysis  of  pertinent  authority.   Commonwealth  v.  Martz,  232  A.3d 

801, 811 (Pa. Super. 2020).   

Appellant  further  repeats  his  argument  that  the  trial  court  improperly 

weighed the evidence to arrive at a “manifestly unreasonable” result.  See, 

e.g., id. at 71 (Appellant stating that because “the majority of the Trial Court’s 

conclusions  are  unsupported  in  the  record,  the  award  of  primary  physical 

custody to Mother constitutes an abuse of discretion.”).  Appellant’s issues are 

unavailing.    The  trial  court  properly  decided  this  case  after  assessing  the 

evidence.    “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.”   M.J.M.  v.  M.L.G.,  63  A.3d  331,  339  (Pa.  Super.  2013)  (citation 

omitted) (emphasis added).  “The parties cannot dictate the amount of weight 

the trial court places  on  evidence.”   A.V.,  87  A.3d  at  820.    Accordingly,  we 

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discern no error or abuse of discretion. 

Order affirmed. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

 

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