J-S12044-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

P.J.A.,                                   :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellant                :
                                          :
                    v.                    :
                                          :
H.C.N.,                                   :
                                          :
                 Appellee                 :     No. 2395 EDA 2015

                     Appeal from the Order July 7, 2015,
              in the Court of Common Pleas of Lehigh County,
                Domestic Relations, at No(s): 2007-FC-0427

BEFORE:     MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 18, 2016

      P.J.A. (Father) appeals from the order entered July 7, 2015, which,

inter alia, modified provisions of a prior custody order entered with respect

to P.C.A. (Child). Upon review, we affirm in part and reverse in part.

      Father and H.C.N. (Mother)1 met in New York in May 2005 and were

married in February 2006. Child was born in August 2006. Father, Mother,

and Child moved into a newly-constructed home in October 2006, and

Father lost his job in March 2007. The parties separated in late-March 2007.

“There was a rash of incidents over a brief period in March 2007, which



1
    With respect to the parties, we observe the following. Mother is an
attorney licensed to practice law in Arizona. Throughout the course of the
litigation, she has alternated between being represented by counsel and
proceeding pro se. For this appeal, she is pro se. Father has also been
represented by counsel and appealed pro se at different times in this
litigation. For this appeal, he is represented by counsel.

*Retired Senior Judge assigned to the Superior Court.
J-S12044-16


involved calls to police by both parties, arguments, claims of physical abuse

by Mother against Father and claims of drunkenness by Father against

Mother.” Trial Court Opinion, 5/15/2009, at ¶ 20.       “Each party initiated

vindictive, immature and selfish acts against the other party beginning

primarily in late 2006 and then throughout the next two years.” Id. at ¶ 21.

      On April 5, 2007, after a hearing before the trial court, it entered the

first of several interim custody orders. That order provided, in relevant part,

that Father would have temporary physical and legal custody of Child.

Mother would exercise partial physical custody on a daily basis for a

minimum of three hours per day as coordinated by the parties. On May 4,

2007, the parties agreed to a new custody schedule, in which Mother’s

periods of partial physical custody were set forth in a more specific manner.

On November 20, 2007, the parties agreed to an interim order of court that

provided Mother and Father shared legal and physical custody of Child.

      On January 22, 2008, Father and Mother agreed to a final custody

order.   That order provided, in relevant part, that the parties shall have

shared legal custody with primary physical custody to Mother subject to

Father’s exercise of partial physical custody at specified times, including

alternate weekends, and other dinner and overnight visits. That order also

included a holiday schedule.

      On March 11, 2008, Father filed a petition for modification of custody.

That petition was followed by several petitions for sanctions against Mother.



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On January 16, 2009, Mother filed a petition for relocation. The trial court

held hearings on March 23 through 26 and April 2, 2009 on these petitions.

On May 15, 2009, the trial court entered an order denying Mother’s petition

for relocation. The trial court also ordered that Mother and Father shall have

shared legal custody as well as equal, shared physical custody of Child.

      After the entry of this order, the parties continued to proceed with

their divorce, as well as litigate numerous petitions for special relief,

sanctions, and contempt over disputes about a wide range of issues for Child

including,    but   not   limited   to:   out-of-country   travel;   visitation   with

grandparents; Child’s aggressive behavior; information about Child’s health

and doctors; the custody schedule for Halloween; and selection of an after-

school program.      While many petitions were ruled upon, others were left

unresolved.

      On March 27, 2013, the trial court entered an order and opinion, by

agreement of the parties, that it would conduct two rounds of hearings and

then enter an order to resolve “all of the issues raised in these unresolved

pleadings.” Trial Court Opinion, 3/27/2013, at 2.2 In its order and opinion

issued after those hearings, the trial court addressed the statutory factors


2
  This order and opinion were authored by Judge Ford. Around March 2013,
Judge Ford, who was the judge on this case ab initio and for all proceedings,
was transferred to a different division of the trial court. Judge Reichly was
assigned the case. He authored all subsequent orders and opinions in this
case.



                                          -3-
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set forth in 23 Pa.C.S. § 5328(a). Notably, the trial court continued the joint

legal and physical custody arrangement.        The parties then continued their

practice of filing numerous petitions for special relief, contempt, and

sanctions.

        On March 31, 2014, Mother filed a petition for sanctions and a

complaint to modify custody. Specifically, she requested that the trial court

grant primary physical custody to her.     Mother filed an amended petition on

May 9, 2014, averring that Father surreptitiously registered Child to play

travel soccer in violation of a court order.    That petition also averred that

Father enrolled child in Holy Communion preparation (PREP) classes in

violation of a court order.    Thus, Mother requested both primary physical

custody and sole legal custody of Child.

        On June 3, 2014, Father filed answers to both petitions, a counter-

petition, and a petition for contempt. Father also requested primary physical

custody of Child.

        Hearings were held on October 6 to 8, 2014, April 27 through May 1,

2015, and May 7 to 8, 2015.3 On July 7, 2015, the trial court entered an

order granting in part and denying in part the petition for modification. After

an analysis of the statutory factors, the trial court continued the parties’

shared legal and physical custody arrangement. The trial court also entered


3
    Both parties were pro se for these petitions and hearings.



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J-S12044-16


more specific orders with respect to Child’s religious upbringing and

participation in sports.

      Father timely filed a notice of appeal and concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i), and the trial

court filed an opinion.

      On appeal, Father asks this Court to consider the following: “Does the

lower court’s custody order further the best interests of [Child]?” Father’s

Brief at 4. Specifically, Father sets forth four issues for our review:

      A. The trial court erred by substantially limiting Father’s ability
      to present his case.

      B. Even if remand is not warranted, the record establishes that
      Father should have been awarded primary physical custody.

      C. The lower court’s restriction of Father’s ability to practice his
      religion with [Child] is contrary to this Court’s precedent.

      D. There is no evidence in the record to suggest that [Child’s]
      participation in sports, or Father’s choice to coach his son, is
      detrimental to [Child].

Id. at 10, 13, 14, 16 (unnecessary capitalization and bold-type omitted).4


4
   Father’s brief violates Pa.R.A.P. 2116(a), which provides that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” “[A]s a practical matter, this Court
[dismisses] appeals for failure to conform to the Rules of Appellate
Procedure only where the failure to conform to the Rules results in the
inability of this Court to discern the issues argued on appeal.” Kern v. Kern,
892 A.2d 1, 6 (Pa. Super. 2005). Despite Father’s one question statement
of questions involved, which expands to four separate questions in his
argument section, we will not dismiss Father’s appeal for failing to conform
to Pa.R.A.P. 2116(a). Although we do not condone this format, we are able
to discern Father’s arguments.


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J-S12044-16


      We set forth our well-settled standard of review when considering a

child custody order.

      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.

E.R. v. J.N.B., __ A.3d __, 2015 WL 8717198, at *5 (Pa. Super. 2015)

(quoting V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations

omitted)).

      “When a trial court orders a form of custody, the best interest of the

child is paramount. The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S. § 5328(a).” E.R., 2015 WL 8717198, at

*5-6 (citations and quotations omitted).

      (a) Factors.—In ordering any form of custody, the court shall
      determine the best interest of the child by considering all
      relevant factors, giving weighted consideration to those factors
      which affect the safety of the child, including the following:

             (1) Which party is more likely to encourage and
             permit frequent and continuing contact between the
             child and another party.




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          (2) The present and past abuse committed by a
          party or member of the party’s household, whether
          there is a continued risk of harm to the child or an
          abused party and which party can better provide
          adequate physical safeguards and supervision of the
          child.

          (2.1) The information set forth in section 5329.1(a)
          (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.




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

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

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

           (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

     Father argues that the trial court’s “evaluation of the custody factors

was improperly skewed in favor of Mother because the court precluded

Father from presenting compelling, relevant evidence, the consideration of

which would have resulted in a different consideration of the custody

factors.” Father’s Brief at 10. Thus, Father requests that this Court reverse

and remand “to allow Father to present this evidence.” Id. at 13.

     Father’s chief complaint in this regard is the trial court’s limitation of

testimony to events occurring after the entry of the November 20, 2013

custody order.5 The trial court stated that it was “not going to go back over


5
  To provide background on what led up to the trial courts limitation, we
offer the following summary. On April 5, 2012, Father filed a petition for
contempt alleging that Mother deprived Father of his custodial time such
that he was unable to trick-or-treat with Child on October 28, 2011
(Halloween 2011). Halloween had been a source of contention each year,
and in December 2010, the trial court ordered that Father was to have Child
for Halloween 2011. Halloween 2011 would be celebrated on October 28,


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J-S12044-16


ancient history from four years ago making a custody determination today.”

N.T., 10/6/2014, at 167. Further, it would not deal with “an attempt to go

over a record which could have been or was created before Judge Ford years

ago.” Id. at 171-72.

      “[T]he admission or exclusion of evidence is within the sound

discretion of the trial court. In reviewing a challenge to the admissibility of

evidence, we will only reverse a ruling by the trial court upon a showing that

it abused its discretion or committed an error of law.” R.K.J. v. S.P.K., 77

A.3d 33, 41 (Pa. Super. 2013) (citations and quotations omitted).

      The trial court explained:



2011, during Child’s afternoon kindergarten class and for trick-or-treating
that evening. Father was to have custody from Friday, October 21, 2011 to
Friday, October 28, 2011. Mother’s father died on October 20, 2011. So as
not to impede Father’s custodial time, Mother asked her mother that she
wait a week for the funeral. Mother then scheduled a flight to the funeral for
herself and Child for the afternoon of October 28, 2011, several hours before
her custodial time began. Mother notified Child’s school he would be missing
afternoon kindergarten, and sent Father an e-mail at 1:54 p.m. that
afternoon to tell Father that she was taking Child to the funeral. See
Father’s Petition for Contempt, 4/5/2012; N.T., 1/25/2013, at 180-87.
Father did not receive that e-mail prior to arriving at the school where he
found out Child was not there. On March 27, 2013, the trial court dismissed
the petition for contempt because Father waited six months to file it.

       At the October 6, 2014 hearing, Mother called Antoinette Clark to
testify. She is a friend of Father and the mother of Child’s friend. Father
asked her about a conversation between the two of them that occurred in
the summer of 2014 where the topic of Halloween 2011 was raised. Mother
objected. The trial court ruled that the testimony was inadmissible as
irrelevant. N.T., 10/6/2014, at 166-67.




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      It is significant to note that the parties in this case have a
      longstanding history of endeavoring to re[-]litigate issues
      previously addressed. Both parties are guilty of attempting to
      bring up past issues at hearings under the guise of
      demonstrating the other party’s pattern of behavior over the
      years. The [trial court] is familiar with the parties’ history and
      has communicated that to them. Moreover, Judge Ford has
      issued several orders and opinions addressing various issues the
      parties have raised over the years. It would not be productive to
      retread old ground in the form of testimony when there are
      volumes of Notes of Testimony thoroughly covering the parties’
      grievances with one another.

Trial Court Opinion, 8/26/2015, at 5 n. 5.

      Based on the foregoing, it is evident that the trial court was very

familiar with the facts of this case from the volumes of transcripts, orders,

and opinions already issued in this case.      The custody of Child has been

litigated essentially since Child’s birth, and we agree with the trial court that

it would serve no legitimate purpose to rehash every issue with every

petition to modify custody. Moreover, because the trial court was aware of

the incidents that would affect the aforementioned custody factors, even if

they were not specifically litigated during the most recent ten-day custody

trial, we cannot see how the trial court committed an error of law or abused

its discretion in weighing the custody factors on the record it had.

Accordingly, Father is not entitled to a remand for a new custody hearing

which includes this testimony, nor is he entitled to a re-weighing of the

factors on this basis.




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      Father next contends that the trial court erred with respect to factor

13, which requires the trial court to assess “[t]he level of conflict between

the parties and the willingness and ability of the parties to cooperate with

one another….” 23 Pa.C.S. § 5328(a)(13).      Father contends that the trial

court should not have found this factor to be neutral, but should have been

in his favor because of Mother’s treatment of paternal grandmother.6

      Instantly, the trial court set forth a thorough analysis of all of the

factors. See Trial Court Opinion, 7/7/2015, at 3-12. It determined that of

the seventeen factors, nine were neutral; three were not relevant or

considered; four weighed slightly in favor of Mother; and one weighed in

favor of Father. We observe that even if the trial court found that factor 13

weighed in Father’s favor, rather than being neutral, we are not convinced it

would have tipped the scales such that the trial court would have granted

Father primary physical custody.

      Additionally, with respect to factor 13, the trial court offered the

following detailed analysis:

            Both parties are guilty of being so obsessed with finding
      flaws in the other’s parenting skills that the [c]ourt is amazed
      the parties’ behavior has not had a more detrimental effect on
      [Child]. From [Mother’s] perspective, [Father] has deliberately

6
  “[Child’s] paternal grandmother often picked up [Child] from school and
[Child] was with her on numerous occasions when [Father] got home from
work. [Mother] engaged the services of private investigators to spy on
[Father] and [paternal grandmother] in order to prove that [Father] was not
personally exercising some of his periods of physical custody.” Trial Court
Opinion, 8/26/2015, at 14-15.


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J-S12044-16


     enrolled [Child] in athletic activities which so dominate [Child’s]
     time out of school that [Mother] felt she was not able to
     schedule any events herself with her son. [Mother] accused
     [Father] of scheduling birthday parties for [Child] giving her little
     advance notice. She accused [Father] of scheduling medical
     appointments for [Child] at inconvenient times without
     consulting her, of failing to give [her] sufficient notice he was
     going to be late picking up [Child] for weeknight dinner visits,
     and for dishonestly telling [Child’s] school he was only a few
     minutes away in order to allow for release of [Child] to paternal
     grandmother when in fact [Father] is consistently out of the area
     at the time he asserted he would assume physical custody of
     [Child]. [Mother] has accused [Father] of manipulating his
     employment status to falsely claim he was available to care for
     [Child] when in fact he was not, of attempting to encourage
     [Child] to provide information about [Mother’s] private life, and
     for encouraging [Child] to disrespect [Mother’s] decision-making
     and the legitimacy of her parenting decisions.

           Alternatively, [Father] alleges [Mother] has engaged in
     emotionally aberrational behavior. He accused [Mother] of being
     mentally unbalanced and refusing to co-parent with [him] for
     [Child’s] benefit.      Often what [Father] characterizes as an
     unwillingness to co-parent is a lack of agreement by [Mother]
     with what [Father] has unilaterally determined is in the best
     interests of [Child], such as [Child] being baptized in a religious
     faith significantly different from [Mother’s], enrolling [Child] in
     athletic teams without consulting [Mother] or gaining her assent,
     and insisting [Child] attend practices and games on [Mother’s]
     custodial time. [Father] emotionally and passionately described
     his pride in his son’s athletic abilities at such a young age, and
     how he is confounded by [Mother’s] unwillingness to enable to
     [Child] to fulfill his athletic potential. A corollary objection from
     [Father] is [Mother’s] unwillingness to allow [Father] to coach
     [Child] in every sport in which he participates, which [Mother]
     views as an underhanded method by [Father] to spend time with
     [Child] even during those days and times when [Child] is
     supposed to be in [Mother’s] custody.

           As alluded to above, because of the hostility between the
     parties, the [trial court] is compelled to resort to extraordinary
     delineation of the boundaries of each parent’s custodial periods
     and responsibilities in order to reduce the possibility of more



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      conflict between the parties. Such limitations include prohibiting
      [Father] from participating as a coach on more than one of
      [Child’s] athletic teams per school calendar year, and precluding
      [Father] from having [Child] accepted into [Father’s] religious
      faith without [Mother’s] written consent.       [Mother] will be
      precluded from assuming custody at any time when [Father] is
      not personally available and present to take custody of [Child]
      for a weeknight dinner visit or from school, and will be prohibited
      from stalking the paternal grandmother when she fills in for
      [Father] to pick up [Child] from school. [Mother] is encouraged
      to accommodate [Child’s] interest in participating in sports and
      Catholic religious services.

Trial Court Opinion, 7/7/2015, at 9-11.

       It is evident that the trial court was aware of and accounted for

Mother’s behavior in stalking paternal grandmother as Father now argues.

However, the trial court weighed that behavior with Father’s behavior and

concluded that this factor was neutral. Father’s arguments largely amount

to a contention that the trial court should have interpreted certain evidence

in his favor or otherwise challenge the weight the trial court attributed to the

evidence and its credibility determinations, which we may not disturb on

appeal. See R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015).          Thus,

Father is not entitled to relief on this issue.

      Father next argues that the trial court has interfered with Father’s

ability to practice Catholicism with Child. Father’s Brief at 14-16. We provide

the following background on this issue.

      Father is a practicing Catholic. Mother was raised as a Lutheran and is

currently a member of the United Church of Christ.        The issue of Child’s




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J-S12044-16


religious upbringing has been in dispute from the inception of this custody

action.

        The trial court’s first custody order provided the following with respect

to baptism of Child.      Father “agrees that he will not make any major

decisions without consulting and the consent of [Mother].” Trial Court Order,

4/11/2007, at 3 (unnumbered).          However, the following ensued shortly

thereafter.

        24. Notwithstanding a specific court prohibition, on April 26,
        2007, Father registered [his family] at St. Joseph the Worker
        Church in Orefield, Pennsylvania.     He registered [Child] for
        Catholic baptism.     He registered for the August 4, 2007,
        baptismal workshop. Then he scheduled [Child’s] baptism for
        late 2007. He chose the Godparents for [Child]. All of this was
        done without the knowledge and consent of Mother even though
        she shared legal custody with him at the time.

        25. On December 2, 2007, Mother, with her friend, Colleen
        Geiger, went to St. Joseph’s church in the early afternoon. They
        saw vehicles with New Jersey plates.[7] Inside the church was
        Father with [Child] and party assembled for [Child’s] baptism.
        [Child] was baptized.

Trial Court Opinion, 5/15/2009, at ¶¶ 24-25 (footnote added).

        A subsequent custody order provided that the “parties have agreed

that [Child] may be raised in both the Catholic and [other Christian] faiths

until such time as [Child] is old enough to choose a faith for himself.” Trial

Court Order, 2/1/2008, at 15. The next custody order provided that

        [e]ach parent may provide religious instruction to [Child] during
        each parent’s respective period of custody; however, neither

7
    Father’s parents and family resided in New Jersey at that time.


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        parent shall denigrate the religion of the other parent nor
        discourage [Child] from participating in it. It is appropriate that
        the parental approach to religious issues in respect to [Child’s]
        religious training and practice be discussed in therapy.

Order, 5/18/2009, at 6.

        These issues arose once again when it was time for Child to be

enrolled in preschool. Father wished for Child to be enrolled for pre-school

at St. Joseph the Worker Catholic Church. The trial court ordered that Child

be enrolled at a different preschool that was not associated with any religion.

When Child reached elementary school age, Father again petitioned the trial

court to enroll Child at St. Joseph the Worker Catholic School. On March 8,

2011, the trial court ordered that Child be enrolled at public school for

kindergarten. Father filed a notice of appeal from that order. The trial court

authored an opinion, which stated, inter alia, that “for each parent to be on

equal footing in providing religious instruction for [Child], [Child] should not

be placed in a Catholic curriculum particularly at the parish where the

baptism incident took place.” Trial Court Opinion, 4/20/2011, at 4.8

        On September 9, 2013, Father enrolled Child in a program that “is a

prerequisite to [Child] receiving Holy Communion or being an altar server.”

Trial Court Opinion, 11/20/2013, at 2-3.       Father did not inform Mother of

Child’s enrollment in this program.       On October 9, 2013, Father filed a



8
    Father subsequently discontinued that appeal voluntarily.



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petition for special relief to allow Child to practice his religion with Father.

The trial court denied Father’s petition.

      On May 9, 2014, Mother filed a petition for contempt in which she

averred that Child “is now enrolled in self-study classes necessary to

participate in First Holy Communion.” Amended Petition for Contempt and

Complaint to Modify Custody, 5/9/2014, at ¶ 17. Mother requested the trial

court to preclude Child from participating in First Holy Communion “in home,

privately or during mass, … in any way shape or manner.” Id. at ¶ 18.

      Father responded that he “enrolled [Child] to participate in [PREP]

during only Father’s custodial weeks, with no impact to Mother’s custodial

time.” Father’s Answer to Amended Petition for Contempt, 6/3/2014, at

¶ 15. Father argued that this was not a violation of the prior custody order.

Thus, the underlying facts are not in dispute; rather, the issue before the

trial court was whether it was a violation of the custody order for Child to be

enrolled in PREP even if it did not impede Mother’s custodial time. The trial

court modified the custody order to add the following with respect to Child’s

religious upbringing:

      g) Both parents are prohibited from enrolling [Child] in any
      catechism or religious training without the written or e-mailed
      consent of the other parent or further Order of Court.

      h) [Child] is precluded from receiving communion at any
      religious service without the written or e-mailed consent of each
      parent not less than 48 hours prior to the religious service.

Trial Court Order, 7/7/2015, at 19-20.



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     We now turn to an examination of the case law in this area.        Both

Father and the trial court point to this Court’s holding in Zummo v.

Zummo, 574 A.2d 1130 (Pa. Super. 1990). See Father’s Brief at 15; Trial

Court Opinion, 8/26/2015, at 10.9

     In Zummo, Mother was Jewish and Father was Catholic, and at the

time of the divorce, the children were eight, four, and three years’ old.

During the marriage, the family participated fully in Judaism.     While the

father participated in Catholicism “sporadically,” the children were not

exposed to it in any way. Id. at 1141 (emphasis eliminated).       When the

parents separated, the father stopped bringing the oldest child to religious

school during his custodial time (the other two children were not yet old

enough to start).   The parents otherwise agreed on much in the way of

custody, but asked the trial court to determine “to what extent father should

be obligated to see to the attendance of the children at Jewish services

during his visitation periods and whether father should be permitted to take

the children to Roman Catholic services to the extent he attends on his

visitation weekends.” Id. (emphasis eliminated).    The trial court held that

Father must take the children to religious school even during his periods of

9
  We observe that Zummo’s precedential value is in question. In this three-
judge panel decision, one judge wrote for the majority, one concurred in the
result, and one dissented. This court has cited it as authoritative. See
Hicks v. Hicks, 868 A.2d 1245 (Pa. Super. 2005). Our Supreme Court has
noted that the lead opinion in Zummo did not garner another vote, thus
depriving it of precedential effect. Shepp v. Shepp, 906 A.2d 1165, 1178
n.6 (Pa. 2006)(Baer, J. dissenting).


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partial custody; however, Father was not permitted to take the children to

“religious services contrary to the Jewish faith[.]” Id. at 1142.         Father

appealed from that order.

      On appeal, this Court held “that each parent must be free to provide

religious exposure and instruction, as that parent sees fit, during any and all

period of legal custody or visitation without restriction, unless the challenged

beliefs or conduct of the parent are demonstrated to present a substantial

threat of present or future, physical or emotional harm to the child in

absence of the proposed restriction.” Id. at 1154-55.          “[T]his standard

requires proof of a ‘substantial threat’ rather than ‘some probability.’” Id. at

1155. This Court noted further that “while the harm involved may be present

or   future   harm,   the   speculative   possibility   of   mere   disquietude,

disorientation, or confusion arising from exposure to ‘contradictory’ religions

would be a patently insufficient ‘emotional harm’ to justify encroachment by

the government upon constitutional parental and religious rights of parents,

even in the context of divorce. Id. Accordingly, while this Court affirmed the

order with respect to the father’s requirement to take the children to

religious school, it reversed with respect to taking the children to the father’s

services.

      In the instant matter, the trial court concluded that Zummo was

inapplicable, reasoning that “Zummo applies in cases where one party is




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prohibited from exposing his or her child to that party’s religion.” Trial Court

Opinion, 8/26/2015, at 11.

      In this case, both parents are expressly permitted to expose
      [Child] to their respective faiths, Catholic and [United Church of
      Christ], during their respective periods of custody. On the issue
      of religious training, such as Sunday school, the parties must
      agree on [Child] receiving training from one institution or the
      other. This is because, for example, a Catholic cannot receive
      communion in a Lutheran church. These denominations are two
      branches of Christianity, but advancement in one is to the
      exclusion of the other. Because the parties share legal custody,
      the decision to allow [Child] to receive religious sacraments in
      one faith or the other is a joint determination. If they cannot
      come to an agreement, the impact of the Court’s order is
      consistent with Zummo, to permit both parents to expose
      [Child] to their respective faiths. When [Child] reaches the age
      of majority, he would be in a position to determine for himself
      whether to receive additional sacraments such as Confirmation
      in either church. For the time being, the Court’s decision is to
      allow for appropriate exposure to the two faiths. To the extent
      the parties can agree on [Child’s] receipt of religious training,
      there are no legal obstacles preventing him from pursuing the
      appropriate educational and spiritual requirements of the faith
      upon which they agree.

Id. at 11-12.

      Based on our review of the case law subsequent to Zummo, we

disagree with the trial court’s interpretation. In Shepp, our Supreme Court

weighed in on this issue. In that case, while both parties were Mormon, the

father was excommunicated from the church because of his fundamentalist

belief in polygamy. When the parties divorced, the father wished to teach

their daughter about plural marriage, in the event that such a situation arose

in his family. The mother testified that it was the father’s belief in polygamy




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that caused the divorce. The trial court directed that the child continue her

Mormon upbringing, but prohibited the father from teaching her about

polygamy, particularly because the practice of polygamy would result in the

commission of a crime.

        On appeal, this Court affirmed the order of the trial court, reasoning

that “that the teaching of plural marriage constituted a grave threat.” Id. at

1173.     However, our Supreme Court reversed that order, and offered the

following:

        By their very nature, decisions involving child custody must
        focus on the character and conduct of the individual parents and
        children involved. Accordingly, there may be instances where
        restricting a parent from teaching a child about a sincere
        religious belief involving illegal conduct is appropriate. However,
        we emphasize that the illegality of the proposed conduct on its
        own is not sufficient to warrant the restriction. Where, as in the
        instant matter, there is no finding that discussing such matters
        constitutes a grave threat of harm to the child, there is
        insufficient basis for the court to infringe on a parent’s
        constitutionally protected right to speak to a child about religion
        as he or she sees fit.

Id. at 1173-74. See also Hicks, supra (holding that a parent being upset

at the prospects of the child being baptized in a different religion is not proof

of a substantial risk of harm to the child so as to permit the court to

interfere with a parent’s free exercise of religion).

        We now turn back to the instant matter.         In this case, while each

parent is permitted to expose Child to his or her respective religion, the trial

court specifically limited the parent’s ability to educate Child in his or her




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religion.   Such a limitation is contrary to our case law where there is no

indication of a “substantial threat of present or future, physical or emotional

harm to the child.” Zummo, 574 A.2d at 1154. Accordingly, the trial court

erred in concluding that Child was not permitted to be educated or

participate in the sacraments at the Catholic church.         Consistent with

precedent, both parents shall be permitted to educate Child in and practice

his or her religion with Child during their respective periods of custody, so

long as there is no substantial threat of present or future physical or

emotional harm to Child.

      Finally, Father argues that the trial court erred with respect to Child’s

participation in sports, as well as Father’s ability to coach him in those

sports. Father’s Brief at 16-21. We provide the following background.

      The parties have been squabbling over Child’s participation in sports

and other extracurricular activities for a long time.   On February 1, 2008,

the trial court order required the parties to “consult with one another

regarding any extracurricular activities that affect [Child’s] time with the

other parent.” Trial Court Order, 2/1/2008, at 17-18.10

      On August 14, 2012, Father filed a petition for special relief to allow

Child to play team soccer.    This petition arose out of a dispute between

Mother and Father about then six-year-old Child’s interest in playing team

10
   We note that at the time of this order, Child was only eighteen months
old.



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soccer. On September 11, 2012, the trial court ordered that Child shall be

enrolled on a soccer team. Subsequently, the trial court ordered that Child

participate in organized baseball, basketball, and soccer only through “the

public youth association for his geographic area.” Trial Court Opinion,

3/27/2013, at 13.     That order further provided that “the parties shall

cooperate on enrollment and [Child’s] participation; and the parties shall

only enroll [Child] in parochial or private club sports upon the parties’

written agreement.” Id.

     In her amended petition for contempt and complaint to modify

custody, Mother alleged on May 7, 2014, without her knowledge or consent,

Father “unilaterally and covertly registered [Child] for a traveling soccer

team whereby the parties’ [sic] would be required to travel with [Child] to

Delaware   County   and   other   distant    counties….”   Amended   Petition,

5/9/2014, at ¶ 9.11 Mother averred that travel soccer was both more costly

and more time consuming. Tryouts were to occur on May 7, 2014 and May

12, 2014, during Mother’s custodial time.        Mother immediately informed

Father she was not in agreement with travel soccer, specifically because it


11
  The two types of youth soccer discussed here are recreational (rec) soccer
and travel soccer. Rec soccer takes place only during the fall, and games
and practices are all at a local field. Travel soccer requires both more time
and more expense. There is a fall season and a spring season, and an
optional indoor soccer (winter) season. Games are played in surrounding
counties and overnight travel is a possibility. The level of instruction and
competition is greater, as travel soccer teams are composed of players who
are selected for the team by a tryout process.


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J-S12044-16


would interfere with Child’s other “court-ordered extracurricular activities

such as basketball and baseball.” Id. at ¶ 12. Mother also asserted that it is

her belief that Father is coaching Child in his extracurricular activities, and

“is now utilizing his position as coach to thwart and undermine Mother’s

parenting time with [Child].” Id. at ¶ 20.       In particular, Father, as Child’s

baseball coach, has scheduled baseball practices during Mother’s Monday

and Wednesday dinner visits.

      On June 3, 2014, Father responded with a petition for contempt. In

that petition, he set forth Mother’s repeated refusal to accommodate Child’s

extracurricular activity needs. For example, he pointed out that during the

2012 rec soccer season, Mother did not bring Child to the first game that

took place during her custodial time.         Father also averred that in 2013,

Mother enrolled Child for spring baseball, but did not “mention Father’s

desire   to   coach   his   son’s   team,     thereby   removing    Father   from

consideration.” Petition for Contempt, 6/3/2014, at ¶ 8.

      With respect to the sports at issue in 2014, Father claims he informed

Mother of the soccer tryout process.          Initially, he claimed she did not

respond to his e-mails, then he acknowledged that she wrote to him that she

was not in agreement with Child participating in the May 7, 2014 tryout.

Father then wrote an e-mail to Mother stating, “Why are you not agreeable

to supporting our son’s happiness?” Id. at ¶ 14.        Both Mother and Father

then sent the coach copies of custody orders to explain why Child should or



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should not be permitted to play travel soccer. Mother did not take Child to

the second day of tryouts; nevertheless, Child was selected for the team.

Mother informed the organization that Child would not be participating.

Father requested that the trial court order that Child be permitted to

participate in 2014 travel soccer.

       The trial court then heard extensive testimony about the differences

between travel soccer and rec soccer. See N.T., 10/6/2014, at 35-137

(testimony of David Dean, Child’s former rec soccer coach and current coach

of the travel team); Id. at 121-142 (testimony of Marcus Arnfeldt, co-coach

of the travel team).    The trial court also heard testimony from friends of

both parties about the parties’ behavior at sporting events. Finally, the trial

court heard the thoughts of both Mother and Father on these issues. Based

on the foregoing, the trial court ordered that by July 15 of each year, the

“parents shall ascertain if [Child] wishes to participate in travel soccer.” Trial

Court Order, 7/7/2015, at ¶ 17(f).      The trial court provided further that if

Child wished to participate in travel soccer, he would then not participate in

baseball; however, Child could participate in any extracurricular activity

upon written consent of each parent. Additionally, each parent is permitted

to coach or lead one extracurricular activity per school year. Id. at ¶ 17(e).

      The trial court offered the following detailed rationale as to how it

reached these conclusions:




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            This Court has had extensive opportunity to observe both
     parties and has spoken to [Child], a very intelligent and
     articulate eight-year-old boy, in camera to receive his input.

            Father casts his various actions in a light designed to
     create the appearance that they are purely intended to advance
     the best interest of the child.           He encourages [Child’s]
     participation in various sports activities and serves as coach. He
     spent an excessive amount of time offering testimony regarding
     the merits of a child playing on a team and experiencing sports.
     The Court accepted that testimony to the extent that there are
     certain benefits for a child playing sports, such as making
     friends, learning teamwork and other life lessons, and getting
     exercise. However, the order entered by Judge Ford permitting
     [Child] to play certain sports did [not] require [Child] to attend
     every practice, game, meet, etc.

            While the Court has no doubt that [Father] enjoys serving
     as a coach for his son’s teams, the evidence demonstrated that
     coaching also advanced [Father’s] underlying efforts to intrude
     upon [Mother’s] custodial time. For example, the evidence
     showed that [Father] left a voice message for [Mother]
     demanding that she bring [Child] to a game on January 17, 2015
     after she e-mailed [Father] to advise him that [Child] had a
     birthday party to attend that day. This was during [Mother’s]
     custodial weekend. When questioned whether he would send a
     similar voicemail to any other parent on the team, [Father]
     responded, “I don’t because they’re not my children.” [Father’s]
     insistence that the applicable court order mandated that
     [Mother] bring [Child] to every game and practice was both a
     mischaracterization of Judge Ford’s order and a way by which to
     intrude upon [Mother’s] custodial time.

           [Father’s] other argument with respect to sports is that
     [Child] should be permitted to live up to his athletic potential.
     [Father] characterizes anything shy of that as detrimental to
     [Child]. This issue manifested in the context of the parties’
     dispute between enrolling [Child] in travel soccer as opposed to
     the non-traveling team. [Father] argued that [Child’s] level of
     skill at soccer was commensurate with the higher level of
     competition associated with the traveling team. [Mother] did not
     dispute this fact, but opposed [Child’s] enrollment in the travel
     team for other reasons, such as cost and the attendant time



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      commitment. [Father’s] sole focus on the surface is his belief
      that [Child] should live up to his athletic potential to the
      exclusion of other relevant considerations. However, underlying
      this is [Father’s] motivation to attain additional time with his son
      beyond that allocated to him in the custody order. [Father] also
      regularly attempts to classify any disagreement between him
      and [Mother] as a perceived violation of a court order.

             [Mother], by contrast, places her focus on taking [Child] to
      various non-sports activities, such as Boy Scouts, local plays,
      and other activities.       During her custody time, [Mother]
      prioritizes these activities over sports regardless of whether it
      means that [Child] is prevented by virtue of the schedule from
      participating in practices or games.        [Mother] argued that
      [Child’s]    schedule   was    overbooked     between    academic
      requirements and sports participations. Taking both parties’
      positions into consideration, as well as [Child’s] well-reasoned
      preferences, the [court] fashioned an order that allowed [Child]
      to participate in sports without giving [Father] the leeway to
      infringe upon [Mother’s] custodial time.

Trial Court Opinion, 8/26/2015, at 13-14 (citations to notes of testimony

omitted).

      On appeal, Father essentially argues that Child should be permitted to

play two sports in the spring: soccer and baseball. Father’s Brief at 17.

Father argues that the trial court’s order forces Child to make a choice

“between playing spring baseball and relegating himself to recreational

soccer in the fall; or playing soccer at the level he is actually qualified for (in

the fall and spring) but skipping baseball.” Id. at 17-18. Father contends

that unless Mother could prove that Child would be “harmed playing two

sports in the spring[,]” the trial court erred in its order. Id. at 19. Father

also states that the trial court erred in limiting the parties to leading or




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J-S12044-16


coaching one activity per school year.            Father claims that Child is not

harmed by having Father coach; Mother can also attend all practices and

games; and, Father suggests that he does not even spend extra time with

Child when he is coaching “because he is preoccupied with coaching ten

other little boys as well.” Id. at 20.

       Despite Father’s protestations to the contrary, the trial court did not

abuse its discretion in fashioning its order. Once again, Father’s arguments

largely amount to contentions that the trial court should have interpreted

certain evidence in his favor as being in the best interests of Child. The trial

court worked to create an order taking into account the preferences of both

parties, as well as Child, to create balance and ensure the best interests of

the Child. Simply because Father continues to believe that Child should play

travel soccer, along with any other sport Child wishes, does not mean the

trial court erred or abused its discretion.        Accordingly, we conclude that

Father is not entitled to the relief he requests.

      Before we conclude this memorandum, we feel compelled to point out

that the record demonstrates that the order of shared legal custody may no

longer be in Child’s best interests. Legal custody is defined as “[t]he right to

make major decisions on behalf of the child, including, but not limited to,

medical, religious and educational decisions.” 23 Pa.C.S. § 5322.

           [I]n order to support a decision of shared [legal] custody,
      the court must make a determination that the parties are
      capable of cooperating, even minimally.… Such a finding is



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J-S12044-16


      essential to an award of shared custody. The rationale behind
      this requirement is that if the parties are unable to cooperate
      minimally shared custody is unworkable and inappropriate.
      However, no more than a finding of minimal cooperation is
      required based on the pragmatic realization that no couple,
      divorced or intact, agrees on every important decision in the
      upbringing of their children. If the court intends to award shared
      custody, then the order must be premised on the parties’
      equality in decision-making. One of the predicates of a shared
      custody order is a finding by the court that the parties are
      capable of cooperating minimally.

Hill v. Hill, 619 A.2d 1086, 1089 (Pa. Super. 1993).

      Instantly, the trial court itself points out over and over again the

extent to which the parties cannot agree on even the most basic issues

related to Child.    The trial court recognizes that “[b]oth parties have

engaged in efforts to undermine the other.           They rarely are directly

confrontational with one another, instead resorting to passive aggressive

emails and other communications.” Trial Court Opinion, 8/26/2015, at 12.

The trial court has attempted to maintain shared legal custody by creating

lengthy custody orders which go into great detail about Child’s life in order

to stem the tide of litigation that has surrounded these parties.

      The record in this case reveals that such efforts have not worked. Just

one month after the custody order at issue was entered, Mother filed a

petition for contempt. A hearing was held on September 8, 2015 regarding

several issues, including travel soccer and vacation time with Child.      It is

apparent that minimal cooperation does not exist between Mother and

Father. While both purport to act in Child’s best interests, the reality is that



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neither is doing so.      By continuing the practice of filing petitions for

contempt and special relief on a monthly basis, the parties are asking the

trial court to act as Child’s legal custodian. This situation cannot and should

not continue.

      Based on the foregoing, and the issues before us, we affirm in part

and reverse in part the July 7, 2015 order of court.

      Order affirmed in part and reversed in part. Jurisdiction relinquished.

      Judge Mundy concurs in the result.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/18/2016




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