J-A13029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.G.                                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

E.D.

                            Appellee                  No. 2982 EDA 2013


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


K.G.                                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

E.D.

                            Appellant                 No. 3128 EDA 2013


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


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

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

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

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


*
    Former Justice specially assigned to the Superior Court.
J-A13029-14


custody of their daughter, G.D.           After thorough review, we reverse and

remand for further proceedings.1

       We summarize the relevant factual and procedural history of this case

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

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

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

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

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

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

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

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

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

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

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

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

2011. Id. at 7, 11.

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

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


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



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

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

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

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

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

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

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

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

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

court granted on March 25, 2011.

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

custody order.     This temporary order granted Father primary physical

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

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

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

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

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

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

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

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

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

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


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

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

10/13/11.

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

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

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

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

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

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

pendency of Father and Wife’s appeal.

       While awaiting our disposition of that appeal, Father filed two

emergency petitions seeking an order enjoining Mother from disclosing the

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

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

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

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

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

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

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

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


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



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

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

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

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

      Following a conference on Mother’s emergency petition to correct

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

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

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

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

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

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

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

      Following this protracted custody proceeding, the trial court granted

Mother and Father shared legal and physical custody on an alternating

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

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

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

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

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

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

party. Id. at 11.




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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

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

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

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

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

our review.

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

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

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

Father’s Brief at 1.

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




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

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

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

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

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

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

omitted).

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J-A13029-14


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

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

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

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

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

677 (Pa. Super. 2004).

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

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

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

custody evidentiary proceeding commences on or after the effective date of

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

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

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

of custody.

              § 5328. Factors to consider when awarding custody

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

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

                    (2)   The present and past abuse committed
                          by a party or member of the party’s

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J-A13029-14


                    household, whether there is a continued
                    risk of harm to the child or an abused
                    party and which party can better provide
                    adequate    physical     safeguards and
                    supervision of the child.

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

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

              (5)   The availability of extended family.

              (6)   The child’s sibling relationships.

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

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

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

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

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

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


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

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

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

                     (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a)(1)-(16).3

       This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

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

(emphasis in original).

              [In addition,] Section 5323(d) provides that a trial
              court “shall delineate the reasons for its decision on
              the record in open court or in a written opinion or
              order.”    23 Pa.C.S.A. § 5323(d).        Additionally,
              “section 5323(d) requires the trial court to set forth
              its mandatory assessment of the sixteen [Section
              5328 custody] factors prior to the deadline by which
              a litigant must file a notice of appeal.” C.B. v. J.B.,
              65 A.3d 946, 955 (Pa. Super. 2013), appeal denied,
              70 A.3d 808 (Pa. 2013).

____________________________________________


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




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

merits of this appeal.

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

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

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

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

adoption consent in fashioning its custody order.      Father similarly argues

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

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

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

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

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

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

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

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

Father’s Brief at 54-63.

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

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

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

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

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

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


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

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

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

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

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

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

the orphans’ court finding that he fraudulently procured the adoption

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

6/5/13, at 176.

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

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

fraudulently procuring the adoption consent in fashioning its custody order,

the   trial   court        responded     that      it     considered    the   above-described

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

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

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

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

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

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

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

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




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

conclude that the trial court abused its discretion.

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

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

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

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

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

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

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

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

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

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

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

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

fraudulent procurement of the adoption consent to its analysis of Section

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

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

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

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

without Mother’s consent.

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

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


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

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

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

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

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

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

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

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

permitting and encouraging frequent contact between the child and [ ]

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

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

parties have demonstrated they are able to permit and encourage frequent

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

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

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

competent record evidence that Father fraudulently procured the adoption

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

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

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

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

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

consistently exercised partial custody on alternating weekends pursuant to


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

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

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

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

Mother exercised her partial physical custody consistently since the

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

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

summarized the extensive testimonial evidence in this regard as follows.

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

                                     …

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

                                     …

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

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

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

         Our review of the testimonial evidence confirms the above summary

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

underlying custody proceedings and trial.          The relationship between the

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

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

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

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

____________________________________________


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



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

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

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

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

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

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

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

Wife videotaped the custody exchanges.        Specifically, Mother testified as

follows.

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

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

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

      Moreover, Father continues to deny that he fraudulently procured the

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

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

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

one who is incapable of permitting frequent and continuing contact between

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

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

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

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

competent record evidence, and its conclusions are unreasonable.

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

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

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

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

following.

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

Mother’s Brief at 57.

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

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

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

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

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

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

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

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

                                    - 19 -
J-A13029-14


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mother agreed to settle the PFA dispute with Father by accepting

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

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

order was issued under these circumstances.

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

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

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

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


                                     - 20 -
J-A13029-14


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

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

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

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

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

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

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

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

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

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

against the other parent.

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

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

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

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

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

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

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

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

hour roundtrip car ride each week between homes.
____________________________________________


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



                                          - 21 -
J-A13029-14


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

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

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

upon the presumption that a shared physical custody arrangement is in

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

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

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

(citations omitted).

         Upon thorough review, we conclude the competent evidence of record

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

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

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

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

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

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

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

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

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


                                       - 22 -
J-A13029-14


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

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

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

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

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

Specifically, the trial court stated as follows.

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

Id. at 7.

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

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

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

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

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

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

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

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

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

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

e-mails regarding G.D. Id.


                                      - 23 -
J-A13029-14


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

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

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

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

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

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

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

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

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

following argument.

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

Mother’s Brief at 60-61.

     Pennsylvania Rule of Appellate Procedure 2744 provides as follows.

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

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

                                   - 24 -
J-A13029-14



                  (1)   a reasonable counsel fee and

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

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

                                      …
Pa.R.A.P. 2744.

      Further, this Court has explained our standard of review.

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

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

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

(citations omitted).

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

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

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

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

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

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


                                    - 25 -
J-A13029-14


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

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

fees and costs.

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

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

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

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

Father alleges that Mother has failed to communicate with him regarding

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

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

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

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

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

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

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

behavior issues.” Id. at 57.

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

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

record evidence overwhelmingly supports the trial court’s analysis of

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

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




                                     - 26 -
J-A13029-14


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

36.

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

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

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

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

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

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

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

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

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

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

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

to the complaining party.” Id.

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

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

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

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

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

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

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

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


                                     - 27 -
J-A13029-14


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

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

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

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

of law by the trial court.

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

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

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

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

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

speech under the Pennsylvania and United States Constitution.

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

issue, which is supported by the testimonial evidence

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

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

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

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

information about the adoption and custody cases, including negative

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

                                     - 28 -
J-A13029-14


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

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

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

6/3/13, at 290-291.

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

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

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

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

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

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

as follows.

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

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

seeking closure have demonstrated a compelling interest in protecting the

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

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




                                     - 29 -
J-A13029-14


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

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

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

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

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

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

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

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

on appeal fail.

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

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

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

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

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

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




                                      - 30 -
                                                                                      -    - -   ---   --   -   ~   -- - -   -   -
                                                                                      Cfrcutat~cf'121{o1261it a4~&'~ 8 ~




    IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
                           CIVIL ACTION - LAW


            K. G.                                               SUPERIOR COURT DOCKET NO.
                                                                2982 EDA 2013
                                                                3128 EDA 2013
              V.
                                                                LOWER COURT DOCKET NO.
                                                                2011-05320
           E. D.

                                                       OPINION
 COO NAHAN, J.                                                       November 27, 2013

           [Jlaintiff,   K~, \T.             { (hereinafter "rlaintiff fvlother") and Defendant,

 E. D.                   I   (hereinafter "Defendant Father") al-e the parents of G.D.

 (hereinafter "the child"), who was born December 28, 2010. On March 2, 2011,

Defendant Father filed a Petition for Adoption in the Orphan's Court Division of the

Court of Common Pleas of Montgomery County, Orphan's Court docket 2011-

A0058. On March 7, 2011, Plaintiff Mother filed an Emergency Complaint for

Custody in the Family Division of the Court of COl11m()n Pleas of Montgomery

County requesting, inter alia, full custody of the child. On March 22, 2011,

Defendant Father filed a Motion to Stay Plaintiff Mother's Emergency Complaint for

Custody due to the pending adoption proceedings in Orphan's Court. On March 25,

2011, after conference with the Honorable Stanley R. Ott, Administrative Judge of

the Orphan's Court Division of the Court of Common Pleas, Montgomery County,

this court granted Defendant Father's March 22, 2011 petition and the custody

proceedings were stayed pending resolution of the Orphan's Court proceedings.

         On May 16, 2011, Plaintiff Mother filed a petition for protection from abuse

on behalf of herself and the child against Defendant Father. On May 16, 2011, a


         IiiI
          2011-05320-0105
                         ~nl~I/~~'~t~ Filingffi:
                      IU27!2013 1:35:57 PlVI
                                                           ~I
                                                     9538966
                              Opinion
               ReceiRt iiZl982235         Fee      SO.OO
         Mark Levy - MontCo Prothonotary
 temporary protection from abuse. order was granted which, inter alia, ordered no

 contact between Defendant Father and the child, and awarded temporary full

 custody of the child to Plaintiff Mother pending the outcome of a final hearing on

 the protection from abuse petition. On May 18, 2011, after conference with Judge

 Stanley R. Ott, the court issued an order reconsidering Plaintiff Mother's March 7,

 2011 Emergency Complaint for Custody and lifted the March 25, 2011 Stay of

 Proceedings.

         On May 26, 2011, at a Protection from Abuse proceeding before the

 Honorable Kelly C. Wall, Plaintiff Mother and Defendant Father entered into a

temporary custody agreement which gave Plaintiff Mother partial physical custody

of the child every other Friday at 7:00 p.m. until Sunday at 7:00 p.m. Custody

transfer of the child on Friday was to take place at the Whitemarsh Police Station in

Montgomery County, Pennsylvania, and custody transfer of the child on Sunday was

to take place at the Odessa Police Station in Odessa, Delaware. Communication was

restricted to occur between Plaintiff Mother and Defendant Father's wife, M. D.

           Plaintiff Mother and Mr.   D.       were to communicate by email for the

purpose of communication concerning the custody transfers, and, in the event of an

emergency, they were to communicate by cell phone. The May 26, 2011

agreement was made an order of the Court on May 27,2011. On May 27,2011, the

temporary protection from abuse order was stricken by the court.

       After hearing, on October 12,2011, Judge Ott ordered under the Orphan's

Court docket number 011-A0058 that the consent for adoption executed by Plaintiff

Mother on or about January 27, 2011 was procured by "fraud and duress practiced

by birth father E. D.            and said consent is hereby revoked." The October



                                           2
 12, 2011 order stated that Defendant Father's petition to confirm consent was

 denied and dismissed with prejudice, and that Defendant Father's outstanding

 petition for adoption was dismissed with prejudice. On October 12, 2011, Judge Ott

 issued a separate order stating that the Orphan's Court matter was resolved by the

 above order, and the May 27, 2011 temporary custody agreement pursuant to the

 Protection from Abuse docket number 2011-13342 was to remain in full force and

 effect pending further order of the Family Court Judge.

       On November 14, 2011, Defendant Father filed an appeal of the Orphan's

Court decision to the Superior Court of Pennsylvania. On December 14, 2011, this

court issued an order stating that the custody proceedings were stayed due to the

pending appeal in the Orphan's Court Division of the Court of Common Pleas.

       On April 25, 2012, Plaintiff Mother filed an Emergency Petition to Correct

and/or Clarify Order of Court and for Appointment of Guardian Ad Litem. On May

18, 2012, the Superior Court of Pennsylvania affirmed Judge Ott's October 12, 2011

order. On June 12, 2012, Plaintiff Mother filed a Petition to Lift Stay and for

Immediate Hearing. On June 18, 2012, Defendant Father filed a Petition for

Allowance of Appeal to the Pennsylvania Supreme Court. This petition was denied

on July 17, 2012.

      On July 30, 2012, after consideration of Plaintiff Mother's April 25, 2012

petition, this court issued an order which, inter alia, granted the parties shared

legal custody of the child, and ordered that effective August 3, 2012, neither

Mother, Father, not Father's wife M.. D.          were to participate in the exchange

of the custody of the child. Third party designees were to exchange the child inside

the police stations in Whitemarsh Township, and Odessa, Delaware.



                                           3
        On August 2, 2012, upon consideration of the June 12, 2012 Petition to Lift

  Stay and for Immediate Hearing, and after conference with the parties, this court

  issued an order directing the Montgomery County Court Administrator's Office, who

  handled this court's scheduling, to list the custody proceeding for a protracted

 hearing.

         On March 25, 2013, this court began a protracted hearing on custody.l

 Plaintiff Mother was represented by Cheryl Sattin, Esquire, and Defendant Father

 was represented by Deidre Agnew, Esquire. Plaintiff Mother testified that she has

 two children, G.D. and an older son, J.G. who was seven years old at the time of

 the hearing. Plaintiff Mother testified that she has had several jobs over the years,

 including bartending, retail management, accounting management, and for a period

 of approximately six months in 2009, she worked at a "massage                   parlor~'   where she

 would occasionally perform sexual acts for some of the customers.2 N .T. March 26,

 2013 at 25-26.

         Mother testified that she met Defendant Father on the dating website,

Match.com in September, 2009. Plaintiff Mother presented evidence that at the

time they met, Defendant Father's profile page on Match.com listed his marital

status as "divorced". N.T. March 26, 2013 at 32-33. Plaintiff Mother also testified

that Defendant Father told her he was "fully divorced" when they met. March 25,

2013 N.T. at 35; Plaintiff testified that in March, 2011 she first learned that


 I The custody hearing in this matter occurred over fifteen days from March, 2013 until August, 2013.
There are over 4,000 pages of testimony from eighteen witnesses which have been transcribed. Due
to the volume of the hearing record, the court shall only summarize the testimony of the parties as it
relates to the history between them which led up to the filing of Plaintiff Mother's March 7, 2011
Complaint for Custody. Any other testimony cited in the opinion shall be done as the court's addresses
the parties' purported errors as stated in their respective 1925(b) statements.

2 Mother testified that prior to 2009, she worked at the same "massage parlor" "for a brief period of

time" but quit. N.T. March 25, 2013 at 24.


                                                   4
 Defendant Father was in fact married. Plaintiff Mother testified that when she met

 Defendant Father, he told her his first name was "Ed", and he would sign his emails

 to her "Ed" or "Edward", and he told her that his last name was DuPont. N.T. March

 25, 2013 at 36-37.

        Plaintiff Mother testified that she and Defendant Father began dating and in

 April, 2010, Plaintiff Mother became pregnant. Plaintiff Mother testified that at first,

 Defendant Father was "angry" about the pregnancy, and he encouraged Plaintiff

 Mother to have an abortion. N.T. March 25, 2013 at 50. Plaintiff Mother eventually

 made an appointment to get information about an abortion, however, Defendant

Father then changed his mind, telling Plaintiff Mother "he would agree that I could

have the baby ... only if I would allow him to make the rulings for [G.D.] ... he would

basically be the primary custodian ... but I would still be her Mother." N.T. March 25,

2013 at 52. Plaintiff mother testified that termination of her parental rights was

never discussed.

       Plaintiff Mother testified that she and Defendant Father continued to date

during the pregnancy, and that she believed that they would live     tog~ther   after the

baby was born. Plaintiff Mother testified that Defendant Father did not attend any

doctor's appointments with her during the pregnancy. He did attend a baby shower

given for Plaintiff Mother by her family and friends. Plaintiff Mother testified that

the parties also communicated about the pregnancy "all the time" by telephone, in

person, and in text messages. N.T. March 25, 2013 at 56.

      On December 28, 2010, Plaintiff Mother gave birth to the child. Defendant

Father was not present for the birth, but he came to the hospital the following day.

N.T. March 25, 2013 at 72. Plaintiff Mother testified that when she filled in the



                                           5
     birth certificate, she wrote Defendant Father's name down, however his social

     security number was required, and he would not give her the number. "[S]o he was

     never on the first birth certificate." March 25, 2013 at 74.

            Plaintiff Mother testified that she and Defendant Father discussed marriage

    after the child's birth. N.T. March 25, 2013 at 80. Plaintiff testified that in January

    and February, 2011 Defendant Father would visit her and the child "at least two to

    three times a week" and would stay "a couple of hours, at least, every time." N .T.

    March 25, 2013 at 84. At the end of January, 2011, Plaintiff mother testified that

    Defendant Father gave her a document that he said his lawyer had prepared "so he

    could claim his rights as the Father of [the child]".3 N.T. March 25, 2013 at 85.

    Plaintiff Mother stated she saw the word "adoptee" on the document and asked

    Defendant Father about this. Plaintiff Mother testified that Defendant Father told

    her it was to add his name to the birth certificate, and so that he could add the

    child to his health insurance, but that "I would always be her mother." N.T. March

    25, 2013 at 86. Plaintiff Mother testified that she did not understand the document,

    but they "went over it very briefly, he told me what it was and I believed him." N .T.

    March 25,2013 at 86-87. A few days later, Plaintiff Mother signed the document

    and returned it to Defendant Father. She stated that she continued to date

Defendant Father after she signed the document. Plaintiff Mother stated that she

and Defendant Father decided that after she returned to work at the end of her

maternity leave, he would take the child during the work week to his house in

Delaware where he would have a nanny take care of her while he worked from

home. Plaintiff Mother would then have the child on the weekends and could come



3   ThiS' document was a Consent of Birth Parent Form, marked as trial exhibit M-7.


                                                     6
  down and see the child "whenever I wanted, until we moved in together." N.T.

  March 25, 2013 at 82.

          Plaintiff Mother testified that a week or two before the end of her maternity

  leave, on February 27,2011, Defendant Father asked to take the child for the night

 for a "trial run" and to have the child get used to the nanny. N.T. March 25, 2013

 at 93. Plaintiff Mother stated she initially was hesitant because "I was taking care

 of her, I was breast feeding her." N.T. March 25, 2013 at 93. She testified that

 "he wanted to make sure it would work out what we had planned. So I said, 'That's

 fine, you can take her for a tria!.' He promised he would bring her back Tuesday."

 N.T. March 25, 2013 at 93.

         Plaintiff Mother testified that when the following Tuesday came, Defendant

 Father did not return the child to her in Pennsylvania. On Wednesday she stated

 she told Defendant Father "You are going to let me see my daughter ... this is too

 long, I can't be without her for this amount of time." N.T. March 25, 2013 at 93-

 94. Plaintiff Mother testified that on Thursday she went to Defendant Father's

 house in Delaware. She testified that she told Defendant Father she wanted to

 bring the child home with her, and that he said no. She stated that he told her he

 would bring the. child up to Pennsylvania on Friday, and Plaintiff Mother agreed

. "because he wasn't allowing me to take [the child] with me." N.T. March 25,2013

at 99.

         Plaintiff Mother testified that on Friday, Defendant Father did not return the

child to Pennsylvania, and that she called him "numerous" times that day but he

was "making excuses". N.T. March 25, 2013 at 101. On Saturday Plaintiff Mother

testified that "eventually he stopped answering me. I kept calling him, texting him,



                                            7
  he just disappeared. I got really upset and scared, because I didn't know what was

 going on." N.T. March 25, 2013 at 102. Plaintiff Mother testified that she and her

 friend, E. D.                  , began "looking things up ... on computer searches" and

 they found "numerous connections between Defendant Father and a woman named

 Me D,             . N.T. March 25, 2013 at 103. Plaintiff Mother testified that

 eventually she was able to reach Defendant Father and they arranged to meet the

 following day in Maryland.

         The parties met the following day, Sunday, at a restaurant in Maryland and

 Plaintiff Mother stated that Defendant Father told her he was married, but he and

 his wife had an "open relationship" and they could do whatever they wanted. N.T.

 March 25, 2013 at 107.          Plaintiff Mother testified when she asked Defendant

 Father what was going on, "he said 'Oh the paperwork you actually signed, was

 actually so M. D.      could adopt G. D.        .' And I said are you kidding me ... that's not

what you told me .. .! would never agree to that...you know I would never give her to

your wife." N.T. March 25, 2013 at 108. Plaintiff testified that Defendant Father

told her it was "too late now. Everything is finalized. You had thirty days and

that's up, so baSically you have no rights." N.T. March 25, 2013 at 108. Plaintiff

Mother left Maryland without the child, and after consulting with an attorney, she

filed the revocation of the adoption paperwork and the emergency custody petition

on Marc h 7, 20 11. 4

         Defendant Father testified that when he joined Match.com in 2004, he listed

his status as "divorced" because he was divorced from his first wife, not because he


4 As previously stated in this opinion, on October 12, 2011, Judge Ott issued an order for the Orphan's
Court proceeding under docket 2011-A0058 which revoked the consent to adopt, denied Defendant
Father's petition to confirm consent, and dismissed with prejudice Defendant Father's petition for
adoption.


                                                   8
 was divorced from M, IJ,              : his second wife. N.T. June 5, 2013 at 74.

 Defendant Father testified that although he was separated from his wife, M, b.        ,he

 had a business relationship with her, and "we had a personal relationship, we were

 talking, we were amicable.   II   N.T. June 5, 2013 at 77. When asked by Ms. Sattin if

 he agreed with his testimony from the Orphan's Court proceeding on September

 21, 2011 where he stated that in 2008 "I was going just to date other people, and

 she was open to date other people if she wanted to, and that's the arrangement we

 came up with 11, Defendant Father replied: "Yes."

        Defendant Father testified he identified himself on Match.com as E.D.,

meaning E. D,               , and that he did not give people he met online his real

name at first because "I do a lot of business from New York to Virginia, and I just

didn't feel comfortable giving my name, I really didn't." N.T. June 5, 2013 at 87.

Defendant Father testified that when he first met Plaintiff Mother he did not know

that she was working at the "massage parlor" and he only learned of it "six or

seven months later". N.T. June 5, 2013 at 93.

       Defendant Father testified that he began dating Plaintiff Mother in September

of 2009. He stated that the child was conceived in March of 2010. Prior to Plaintiff

Mother becoming pregnant, Defendant Father stated that he "tried to stop seeing

her .. .! tried to pull away from the relationship ... 11 N.T. June 10, 2013 at 35.

Defendant Father testified that in April or May, 2010 when he was reconciling with

his wife, M.D,   ,he told M. D.     about Plaintiff Mother, but that he did not tell her

that Plaintiff Mother was pregnant. N.T. June 5, 2013 at 143.

       Defendant Father testified that after he and Plaintiff Mother found out that

she was pregnant, "we came to the agreement that we had about [the child]. She



                                              9
 wanted to get an abortion, and I didn't want to do that.. .. I made her a proposal,

 why don't you let me raise the child by myself instead of aborting it." N.T. June 10,

 2013 at 36. Defendant Father testified that his wife, M .1},    participated in the

 adoption later because Plaintiff Mother found out " ... that if someone is terminating

 someone's parental rights, that person that's giving up that parental right, someone

 else has to fill that person's shoes in order to do that." N.T. June 10, 2013 at 73.

 Defendant Father testified that Plaintiff Mother eventually agreed with his

 suggestion to allow M, 1>.   to take her place as the child's Mother. N.T. June 10,

 2013 at 74.

        Defendant Father testified that due to the agreement he had with Plaintiff

Mother concerning the adoption of the child by Defendant Father and his wife, his

attendance at the baby shower and his participation in the selection of the child's

name was a "charade" that he had to go through. Defendant Father testified that

Plaintiff Mother was misleading herfamily as to the true nature of the parties'

relationship and the pregnancy. N.T. June 5, 2013 at 151.

       Defendant Father denied that Plaintiff Mother signed the adoption consent

paperwork due to any fraudulent behavior on his part, and that she did so willingly

and by agreement. Defendant Father testified that he told his wife M.D,        about

Plaintiff mother's pregnancy in September of 2010, and the she was "very upset."

N.T. June 5, 2013 at 158. Defendant Father testified that by November, 2010,

after starting the reconciliation process with M,D..   ,they discussed adopting the

child from Plaintiff Mother. Defendant Father stated that at the time, he and M ,f).

believed that she could not have any children biologically. N.T. June 5, 2013 at

160.



                                           10
        Defendant Father testified that after the child was born, he filed the consent

 to adopt paperwork after Plaintiff Mother signed it, and then he took custody of the

 child on February 27,2011 pursuant to the agreement he had with Plaintiff Mother.

 Defendant Father testified that-he does not agree with Judge Ott's finding that the

 adoption consent was obtained by fraud. Defendant Father stated: " .. J don't agree

 with it, but I am abiding by it. I respect what he did." N.T. June 5,2013 at 176.

       After fifteen days of hearings, on September 27,2013, the court entered a

final custody order in this matter which, inter alia, gave the parties shared legal

custody of the child and gave the parties shared 50/50 physical custody of the

child. The September 27,2013 Order also stated, inter alia, that the parties are to

attend co-parenting counseling "forthwith", and are to continue with co-parenting

counseling "until such time as the counselor deems it no longer necessary, or, until

further order of the Court." September 27,2013 Order at 10.

       On October 24, 2013, Plaintiff Mother filed a Notice of Appeal to the Superior

Court of Pennsylvania of the September 27, 2013 Order. On October 25, 2013,

Plaintiff Mother filed an Amended Notice of Appeal to the Superior Court of

Pennsylvania wherein Plaintiff Mother states that this matter is a children's fast

track appeal. On October 28,2013, the court issued an Order directing Plaintiff

Mother to file a Concise Statement of Errors Complained of on Appeal pursuant to

Pa. R.A.P. 1925 (b) within twenty one (21) days of the date of the Order. On

October 28, 2013, Plaintiff Mother filed an Amended Notice of Appeal to the

Superior Court of Pennsylvania. The October 28, 2013 Amended Notice of Appeal

incudes a Request for Transcript. On October 28, 2013, Plaintiff Mother filed a

Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.



                                          11
1925(b). The court notes that ten (10) of the fifteen (15) days of trial Notes of

Testimony had been transcribed and filed with the Montgomery County

Prothonotary's Office prior to both parties filing their respective Notices of Appeal to

the Superior Court of Pennsylvania. One additional day of Notes of Testimony for

the August 9, 2013 hearing was transcribed and filed with the Montgomery County

Prothonotary's Office after Plaintiff Mother filed her Notice of Appeal, but prior to

Defendant Father filing his Notice of Appeal. Plaintiff Mother's Concise Statement of

Matters Complained of on Appeal states as follows:

          "1. The Trial Court abused its discretion in finding that
          Father has demonstrated that he is able to permit and
          encourage frequent and continuing contact between the
          child and the other party particularly in light of the
          overwhelming evidence to the contrary, including but not
          limited to, a) the findings of the Orphan's Court and of the
          Superior Court in the matter regarding Father's
          procu rement of a fraudulent consent to adopt, and b)
          Father's (and his family's) course of conduct designed to
          minimize Mother's involvement with the child both in the
          form of physical custody and relating to her ability to
          share in decision making relating to the child."

         "2. The Trial Court abused its discretion in finding that
         there was "no credible eVidence that either parent has
         attempted to turn the child against the other parent"
         given the overwhelming evidence to the contrary including
         but not limited to, a) the findings of the Orphan's Court
         and of the Superior Court in the matter regarding Father's
         procurement of a fraudulent consent to adopt, and b)
         Father's (and his family's) course of conduct designed to
         minimize Mother's involvement with the child both in the
         form of physical custody and relating to her ability to
         share in decision making relating to the child and to
         alienate Mother from the child."

         "3. The Trial Court abused its discretion in failing to award
         to Mother primary physical custody in light of the improper
         conclusions drawn as to Custody Factors 1, 8, and in
         failing to properly weigh and consider factors 2,11 and 13
         of 23 Pa.C.S.A. §5328(a)."



                                          12
       On November 6, 2013, the Superior Court of Pennsylvania designated this

matter as a "Children's Fast Track" appeal. On November 7, 2013, Defendant

Father filed a Notice of Cross-Appeal to the Superior Court of Pennsylvania from the

custody order entered September 27, 2013, and a Statement of Matters

Complained of on Cross-Appeal pursuant to Pa.R.A.P. 1925(b). Defendant Father's

Statement of Matters Complained of on Cross-Appeal pursuant to Pa.R.A. P. 1925(b)

states as follows:

                      "1. The Trial Court committed prejudicial
             error in excluding evidence offered by Cross-
             Appellant, including but not limited to evidence
             concerning how Mother raised and cared for her son
             (not the child at issue in this case), the medical care
             (or lack thereof) provided to her son, child care
             decisions for her son, and all other evidence
             concerning Mother's son."

                       "2. The Trial Court abused its discretion in
            finding that Mother demonstrated that she is able to
            permit and encourage frequent and continuing
            contact between the child and Father particularly in
            light of the overwhelming evidence to the contrary,
            including but not limited to, a) Mother's failure to
            properly communicate with Father about issues
            concerning the child and other issues, b) Mother's
            (and her family's and friend's) consistent course of
            conduct to turn exchanges and other contact into
            chaotic events in front of the child, and c) Mother's
            attempts to bring false abuse charges against Father
            on three occasions, in Pennsylvania, Maryland, and
            Delaware and the lying about it repeatedly under
            oath and otherwise to try to use it to her advantage
            before the Trial Court."

                      "3. The Trial Court abused its discretion in
           finding that there is no continued risk of harm to the
           child by Mother or by any member of Mother's
           household, given the overwhelming evidence to the
           contrary, including but not limited to, a) the
           repeated and excessive bruising and other injuries
           (i.e., burned lips, black eye) suffered by the child
           while in Mother's care, b) the numerous rashes and


                                         13
 illnesses suffered by the child as a result of being in
 the care of Mother, c) the behavior of the child after
 returning from Mother's care such as hitting, head
 butting, cursing, and problems with sleep, and d)
 the evidence that Mother was oblivious about the
 child's fevers, bruising, injuries, and illnesses."

           "4. The Trial Court abused its discretion in
finding that Mother has provided the necessary care
of the child while in Mother's custody, in light of the
overwhelming evidence to the contrary, including
but not limited to, a) Mother's failure to provide
proper medical care for the child during the first two
months of her life and at other times, and b)
Mother's failure to properly care for or supervise
child resulting in excessive bruising and other
injuries to the child and illnesses suffered by the
child."

         "5. The Trial Court abused its discretion in
 finding no credible evidence that Mother has
attempted to turn the child against Father, given
the overwhelming evidence to the contrary,
including but not limited to, a) Mother's website,
Facebook pages, and other online presences, and b)
Mother's media coverage both online and on
television, that all set forth false and untrue
statements about Father, and disclosed confidential
Orphan's Court matters, which portray Father in an
extremely negative light and which child will be able
to see as she gets older and is able to read and get
online."

          "6. The Trial Court abused its discretion in
 finding that the child is doing well physically and
emotionally while under the care of Mother and in
finding that Mother is able to attend to the daily
physical, emotional, developmental, educational and
special needs of the child in light of the
overwhelming evidence to the contrary, including but
not limited to, a) the repeated and excessive
bruising and other injuries (i.e. burned lips, black
eye) suffered by the child while in Mother's care, b)
the numerous rashes and illnesses suffered by the
child as a result of being in the care of Mother, c) the
behavior of the child after returning from Mother's
care such as hitting, head butting, cursing, and
problems with sleep, , d) the evidence that Mother


                              14
             was oblivious about the child's fevers, bruising,
             injuries and illnesses, e) Mother's failure to provide
             proper medical care for the child during the first two
             months of her life and at other times, f) Mother's
             failure to properly care for or supervise child
             resulting in excessive bruising and other injuries to
             the child and illnesses suffered by the child, and g)
             Mother's instability in where she lives, insufficient
             sleeping arrangements for the child at Maternal
             Grandmother's home, her many boyfriends, her job
             history, problems with her brother (and his criminal,
             violent and drug history) and problems with Mother's
             son's Father (and his criminal and violent history)."

                         "7. The Trial Court abused its discretion in
             failing to award Father primary physical custody of
             the child for the aforementioned reasons and the
             improper conclusions drawn as to the custody factors
             1,2,3,4,8,10 under 23 Pa.C.S.A. § 5328 (a)."

                         "8. The Trial Court abused its discretion
             in failing to properly weigh and consider custody
             factors 11 and 13 under 23 Pa.C.S.A. § 5328(a)
             when entering its Order, given that the parties live
             at least 1 and 112 hours apart and that this has been
             such an extremely high-conflict case."

                          "9. The Trial Court abused its discretion
              in failing to enjoin Mother from disclosing the
              details of the Adoption and Custody matters on the
              internet, to the media or to any person or entity
              not associated with the Custody or Adoption
              matters, in light of the overwhelming evidence that
             it would not be in the child's best interest, as much
             of what Mother disclosed or published were false
             and untrue statements about Father, and disclosed
             confidential Orphan's Court matters, which
             portrayed Father in an extremely negative light.
             Mother also had future plans for more media and a
             movie deal, in which child's life would be exposed
             for all to witness."


This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925 (a) and

addresses both Plaintiff Mother's and Defendant Father's issues on appeal.




                                          15
        The standard of review of a custody order is very narrow; the appellate court

 is limited to determining whether the trial court committed a gross abuse of

 discretion. See Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008). When reviewing

 an appeal from a custody order, the appellate court should not substitute its

 judgment for that of the trial court; the appellate court merely decides if the

 conclusions of the trial court involve an error of law or are unreasonable in light of

 its factual findings. Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).

 Although there is no presumption favoring shared custody, the courts possess the

 authority to award shared custody. Smith v. Smith, 307 Pa.Super. 544, 453 A.2d

 1020 (1982). Shared custody may be awarded when both parents are fit, both

parents are seen by the child as sources of security and love, and both parents are

able to communicate and cooperate in promoting the child's best interests.

Wiseman v. Wall, 718 A.2d 844 (1998); In re Wesley J.K., 299 Pa.Super. 504,445

A.2d 1243 (1982).

         First, the court addresses Plaintiff Mother's claims as follows:


          "1. The Trial Court abused its discretion in finding that
           Father has demonstrated that he is able to permit and
          encourage frequent and continuing contact between the
          child and the other party particularly in light of the
          overwhelming evidence to the contrary, including but not
          limited to, a) the findings of the Orphan's Court and of the
          Superior Court in the matter regarding Father's
          procurement of a fraudulent consent to adopt, and b)
          Father's (and his family's) course of conduct designed to
          minimize Mother's involvement with the child both in the
          form of physical custody and relating to her ability to
          share in decision making relating to the child."

      At the beginning of trial in the custody matter, counsel for both parties

addressed the issue of transcripts, orders and findings from the 2011 Orphan's



                                          16
 Court trial before Judge Ott, and the orders and findings issued from the Superior

 Court of Pennsylvania and the Supreme Court of Pennsylvania as related to

 Defendant Father's appeal of the Orphan's Court decision. The following

 parameters discussed by counsel for both parties and the court in a pretrial

 conference regarding the Orphan's Court proceedings and the appeals therefrom

 were memorialized as follows on the first day of the custody record:

             Ms. Sattin: "Orders, findings, and opinions of Judge
             Ott, arising out of the 2011 hearing relating to
             Mother's petition to revoke adoption consent are
             admissible in this proceeding, subject to any relevant
             objection ... and that this would also be the case for
             the Superior Court and Supreme Court orders,
             findings, and opinions, which relate to Father's
             appeal of Judge Ott's order.... the transcripts of
             testimony of the witnesses from the 2011 [adoption
             revocation] hearing ... will not be accepted into
             evidence in total, but can be used for cross
             examination and impeachment purposes ... and the
             court shall have the discretion to weigh this evidence
             as Your Honor deems appropriate"

            Ms Agnew: " .. .I just want to make it for the record,
            that you are not bound by the credibility
            determination of these prior findings." N.T. March
            25, 2013 at 8-9.


       Plaintiff Mother's claim that the findings of the Orphan's Court and of the

Superior Court of Pennsylvania in the adoption matter were part of the

"overwhelming evidence" presented at the custody trial, and that these findings, as

well as the outcome of the adoption matter should have played a significant part in

the court's determination as to custody is incorrect.

      In reaching a decision in this custody matter, the court took into

consideration the ruling of Judge Ott in the adoption matter, the decision of the

Superior Court of Pennsylvania denying Defendant Father's appeal of the adoption


                                          17
 ru ling, and the denial by the Supreme Court of Pennsylvania of Defendant Father's

 Petition for Allowance of Appeal. However, the court was not bound by the specific

. findings of Judge Ott in terms of credibility of the parties, witnesses, or a

 redetermination of facts as the case was presented in Orphan's Court. The

 Orphan's Court proceeding addressed the issue of Plaintiff Mother's consent or lack

 of consent to adopt G.D. by E.D. The custody matter before this court addressed

 the best interests of the child, G.D. As stated by this court on the first day of trial:

              The Court: "It was a different inquiry in front of
              Judge Ott ... it's not the same for me. My inquiry is
              the best interest of the child ... so he had a different
              job to do, a different focus, a different responsibility
              really than I have ... [the orders and findings] they do
              exist, they can come in ... the relevancy, the
              weight. .. is what I put on to it. Certainly not in regard
              to credibility, I make my own credibility findings."
              N.T. March 25, 2013 at 124, 126.


       It appears that in part of Plaintiff Mother's Pa R.A.P 1925 (b) statement of

errors 1 and 2, Plaintiff Mother believes that because of the results of Judge Ott's

Orphan's Court order, this court was to focus only on those proceedings and rule

against Defendant Father for that reason. This court is not in a position to

"redress" any purported wrongs which Judge Ott found had occurred in the

procurement of the adoption consent. This court's determination was strictly

limited to a custodia I arrangement which would be in the best interest of the child

and did so by assessing the factors enumerated in 23 Pa.C.S.A. § 5328(a)(1)

through (a)(16) which states as follows:

             (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:



                                            18
 (l)Which party is more likely to encourage and
 permit frequent and continuing contact between
 the child and another party.

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

 (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.




                              19
              (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.

 Plaintiff Mother's statement that the findings and ruling of the Orphan's Court an<:J

 decision of the Superior Court of Pennsylvania regarding Father's procurement of a

 fraudulent consent to adopt constitute part of the "overwhelming" evidence which

should determine the best interests of the child is misplaced and erroneous.

       Plaintiff Mother states that Defendant Father's (and his family's) course

of conduct was "designed to minimize Mother's involvement with the child both

in the form of physical custody and relating to her ability to share in decision

making relating to the child" and, therefore, the court abused its discretion in

finding that Defendant Father has demonstrated that he is able to permit and

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

Plaintiff Mother does not specify what "course of conduct" was designed by

Defendant Father, or his family, to "minimize Mother's involvement with the

child". If Plaintiff Mother is referring to Judge Ott's findings in the Orphan's

Court proceeding, the court did consider Judge Ott's decision among all of the

evidence presented at the custody hearings but his decision is not dispositive of

a custody determination as stated earlier in this opinion. Nor does Plaintiff

Mother specify what time frame she is referring to, or whether she is

referencing Father's conduct prior to or concerning the consent to adopt.

Plaintiff Mother's statement in paragraph 1 is simply a self-serving conclusion

without any supporting evidence from the record. "It is the appellant's



                                          20
 responsibility to precisely identify any purported errors". Schenk v. Schenk,

 880 A.2d 633 (Pa. Super.2005). "When the trial court has to guess what issues

 a defendant is appealing, that is not enough for meaningful review."

 Commonwealth v. Dowling, 778 A.2d 683. 686 (Pa. Super. 2001). "In other

 words, a concise statement which is too vague to allow the court to identify the

 issues raised on appeal is the functional equivalent of no concise statement at

 all." Dowling, 778 A.2d at 686. Therefore, the court submits that paragraph 1

 of Plaintiff Mother's Statement is inadequate to merit appellate review, and

 Plaintiff Mother has waived any alleged error by the court. Pa.R.A.P.

 1925(b)(4)(vii).


          "2. The Trial Court abused its discretion in finding that
          there was "no credible evidence that either parent has
          attempted to turn the child against the other parent"
          given the overwhelming evidence to the contrary including
          but not limited to, a) the findings of the Orphan's Court
          and of the Superior Court in the matter regarding Father's
          procurement of a fraudulent consent to 'adopt, and b)
          Father's (and his family's) course of conduct designed to
          minimize Mother's involvement with the child both in the
          form of physical custody and relating to her ability to
          share in decision making relating to the child and to
          alienate Mother from the child."

       As stated previously in this opinion, Plaintiff Mother misstates the weight to

be given and the purpose of the evidence presented at the custody trial as to the

orders and findings of the Orphan's Court and of the Superior Court of

Pennsylvania. Plaintiff Mother does not specify what "course of conduct" was

designed by Defendant Father, or his family, to "turn the child" against Plaintiff

Mother. Nor does Plaintiff Mother specify what time frame she is referring to, or

whether she is referencing Father's conduct concerning the consent to adopt.



                                          21
 Plaintiff Mother's statement in paragraph 2 is simply a self-serving conclusion

 without any supporting evidence from the record. Therefore, the court submits that

 paragraph 2 of Plaintiff Mother's Statement is inadequate to merit appellate review,

 and Plaintiff Mother has waived any alleged error by the court. Pa.R.A.P.

 1925(b)( 4 )(vii).


            "3. The Trial Court abused its discretion in failing to award
            to Mother primary physical custody in light of the improper
            conclusions drawn as to Custody Factors 1, S, and in
            failing to properly weigh and consider factors 2,11 and 13
            of 23 Pa.C.S.A. §532S(a)."


    23 Pa.C.S.A §532S(a) lists the factors which the court must consider when

awarding any form of custody. Subsection(a)l) states that the court must consider

"which party is mor-e likely to encourage and permit frequent and continuing

contact between the child and another party. 23 Pa.C.S.A. 532S(a)(1). Subsection

(a)(S) states that the court must consider "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." 23

Pa.C.S.A. 532S(a)(S). 23 Pa.C.S.A. §532S(a)(2) states that the court must

consider "the present and past abuse committed by a party or member of a 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." 23 Pa.C.S.A. 532S(a)(2). 23 Pa.C.S.A. 532S(a)(11) states

that the court must consider "the proximity of residences of the parties." 23

Pa.C.S.A. 532S(a)(11). 23 Pa.C.S.A. 532S(a)(13) states that the court must

consider "the level of conflict between the parties and the willingness and ability of




                                          22
 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." 23 Pa.C.S.A. 532S(a)(13).

        Plaintiff Mother's statement as to the custody factors under 23 Pa.C.S.A.

 532S(a)(1) and (a)(S) is repetitive of her claims made in paragraphs 1 and 2 above

 which the court has previously addressed. Furthermore, Plaintiff Mother does not

 specify in what way the court abused its discretion in regard to 23 Pa.C.S.A.

 532S(a)(1),(2),(S), (11), or (13), or what specifically are the "improper

 conclusions" drawn by the trial court. Plaintiff Mother's statement as to cListody

factors under subsections (a)(1),(2), (S), (11), and (13) is simply a general

declaration that the court failed to properly consider these factors without any

specific reference to the evidence of record to support her claim. Therefore, the

court submits that paragraph 3 of Plaintiff Mother's Statement is inadequate to

merit appellate review, and Plaintiff Mother has waived any alleged error by the

court. Pa.R.A. P. 1925(b)( 4 )(vii).

       Plaintiff Mother's statement fails to specify in what way the court abused its

discretion, and Plaintiff Mother fails to refer to any evidence from the custody trial

to support her general claims. As previously stated in this opinion, the transcripts

of ten (10) out of fifteen (15) days of trial were docketed prior to Plaintiff Mother

filing her appeal permitting Plaintiff Mother to support her conclusionary statements

with some supporting references from the trial record had she chosen to do so. The

court submits that Plaintiff Mother's Statement is inadequate to merit appellate

review, therefore, Plaintiff Mother has waived any alleged error by the court and

her appeal should be dismissed pursuant to Pa.R.A.P. 1925(b)(4)(vii).



                                          23
   Second, the court addresses Defendant Father's claims as follows:

               "1. The Trial Court committed prejudicial error in
              excluding evidence offered by Cross-Appellant,
              including but not limited to evidence concerning
              how Mother raised and cared for her son (not the
              child at issue in this case), the medical care (or lack
              thereof) provided to her son, child care decisions for
              her son, and all other evidence concerning Mother's
              son. "

      Plaintiff Mother testified at the March 25, 2013 hearing that she is also the

 mother of J.G, her son who was seven years old at the time of the hearing. J.G's

 son's Father is not the Defendant Father in this case, and J.G. was not the subject

of this custody case. Despite Defendant Father's claim that the court excluded "all

other evidence" concerning Plaintiff Mother's care of her son, Plaintiff Mother

testified as to G.D's sibling relationship with J.G, the childcare arrangements she

has made for her son, his schooling, his relationship with her family, and his lack of

contact with his biological Father.

     In considering the best interests of the child in a custody hearing, the court

must consider both parents' ability to care for the child, and to make child care

decisions for the child. However, the parent's ability to provide the necessary care

for the child must be determined at the time of the hearing. Bresnock v. Bresnock,

346 Pa.Super. 563, 500 A.2d 91 (1985), Michael T.L v. Marilyn J.L., 363 Pa.Super.

42, 525 A.2d 414 (1987)("A parent's ability to care for the child is to be determined

as of the time of the custody hearing, and, in making its decision, the trial court

must not dwell on matters buried in the past, but most concentrate only on those

matters which affect the present and the future of the child.") Plaintiff Mother's son

was not the subject of this custody case, and there was no proffer of any relevant

information as to J.G. which the court should have considered with regard to the


                                          24
  child. Based on the testimony presented at trial, both parents have contributed to

 the lack of communication which has existed between them. Defendant Father's

 claim that the court erred in not finding that Plaintiff Mother was responsible for

 the lack of communication, and, therefore, she would be unable to "permit and

 encourage frequent and continuing contact" is misplaced. "A minimal degree of

 cooperation between parents which is a factor the trial court must consider in

 determining whether to award parents shared custody of children does not

 translate into a requirement that the parents have an amicable relationship".

 B.C.S.v. J.A.S.994 A.2d. 600 (2010) PA.Super.63.

     There was testimony from both parties that they and their families have

participated in disturbances during the custodial exchanges of the child, and that

both parents, and their families, have contributed to the "chaotic" atmosphere that

occurred at several of these meetings. Defendant Father's claim that the court

abused its discretion in not finding that Plaintiff Mother, and her family, were

responsible for the "chaotic events" at these exchanges, and, therefore, Plaintiff

Mother would be unable to "permit and encourage frequent and continuing

contact" is without merit.

    There was no credible evidence presented at the custody trial that Plaintiff

Mother attempted to bring "false abuse charges" against Defendant Father.

Because the court is unclear if Defendant Father is referring to allegations of

abuse made by Plaintiff Mother involving herself or G.D., the court addresses both

issues herein. The court also notes that in his statement or errors, Defendant

Father does not specify any dates or specific instances when Plaintiff Mother is

alleged to have attempted to bring "false abuse charges" against him.



                                          26
    The protection from abuse petition filed by Plaintiff Mother in Montgomery

 County on May 16, 2011, and the temporary order which was issued as a result of

 the petition, were stricken by Judge Wall as part of the temporary custody

 agreement reached by the parties on May 27, 2011 without any findings of fact.

 There was no credible evidence at the custody trial, or finding by the court, that

 Mother lied repeatedly about allegations of abuse by Defendant Father towards

 her, or that she tried "to use it to her advantage before the Trial Court."

    Plaintiff Mother did testify that after Defendant Father accused Plaintiff Mother

of somehow burning G.D.s mouth, she contacted Children and Youth Services.

Plaintiff Mother testified that she contacted the agency because "I was very

concerned. I knew I hadn't burnt her mouth .. " N.T. March 25, 2013 at 236.

Plaintiff Mother testified that Defendant Father refused to give her any information

about G.D.'s doctors at that time, so she could not contact G.D.s doctor about the

child's burnt lip. Plaintiff Mother stated ", .. I thought maybe I could get some

answers if they got involved .. .! knew they would have to contact [G. D. 's] doctor at

least, and I could rest knowing that...she was being looked at. .. " N .T. March 25,

2013 at 236-237. There was no credible evidence presented that Plaintiff Mother

contacted Children and Youth Services to file "false abuse charges" against

Defendant Father. Plaintiff Mother testified that she called Children and Youth

because she was worried about allegations Defendant Father was making towards

her, and because she was concerned about G.D.

      Dr. Thomas Damiano testified that in February, 2013, Plaintiff Mother

brought G.D. to be examined into the Doctor's Express office in Wilmington,

Delaware where he worked. Dr. Damiano testified that Plaintiff Mother was



                                          27
 initially concerned that "two lesions" on G.D.s face and on G.D.s ankle could

 potentially be signs of abuse. N.T. August 9,2013 at 31. Dr. Damiano testified

 that after examining the child, he told Plaintiff Mother that he did not think the

 marks were the result of abuse, but that due to Plaintiff Mother's statement to

 him about her concerns of potential abuse, he would have to "due my due

 diligence and call Child Protective Services .. " N.T. August 9,2013 at 35.   Dr.

 Damiano did not testify that Plaintiff Mother asked him to report to authorities,

 and he did not testify that Plaintiff Mother raised any abuse allegations specifically

 again5t Defendant Father. In fact, when asked by Defendant Father's counsel,

 Ms. I\gnew: "Was she adamant about reporting it?", Dr. Damiano replied: "She

 was not adamant about reporting it, but just if anyone brings up abuse we are

 just obligated to report it." N.T. August 9,2013 at 38. There was no credible

 evidence presented that Plaintiff Mother brought the child to Doctor's Express that

 day in order to file "false abuse charges" against Defendant Father.

     Defendant Father's claim that the court abused its discretion in finding that

Plaintiff Mother would be able to "permit and encourage frequent and continuing

contact" is not based in fact or on any credible evidence presented at trial and his

claim should be dismissed.

                       "3. The Trial Court abused its discretion in
            finding that there is no continued risk of harm to the
            child by Mother or by any member of Mother's
            household, given the overwhelming evidence to the
            contrary, including but not limited to, a) the
            repeated and excessive bruising and other injuries
            (i.e., burned lips, black eye) suffered by the child
            while in Mother's care, b) the numerous rashes and
            illnesses suffered by the child as a result of being in
            the care of Mother, c) the behavior of the child after
            returning from Mother's care such as hitting, head
            butting, cursing, and problems with sleep, and d)


                                          28
              the evidence that Mother was oblivious about the
              child's fevers, bruising, injuries, and illnesses."

        There was extensive testimony by both of the parties as to minor injuries

 such as occasional bruises, isolated rashes, a burnt lip, colds, and one instance of

 hand, foot and mouth disease which the child has had over two and half years.

 Although the child was taken on several occasions by both parents to doctor's

 offices and emergency rooms, none of these alleged injuries, rashes, or colds were

 ever categorized by the physicians who testified as anything other than minor. No

 evidence was presented by either party as to the definitive source or cause of

 these minor bruises, rashes, colds, or the child's burnt lip. Defendant Father's

 claims that the child's colds, rashes, and bruises, and burnt lip were the "result of

 being in Plaintiff Mother's care" is not based in fact or on any evidence presented

at trial. In fact, at the time these bruises, rashes, colds and the child's burnt lip

occurred, no allegations of abuse by Plaintiff Mother were made by Defendant

Father to any investigative agency. Additionally, the court notes that from

February 27, 2011 until and through the time of trial, Defendant Father had almost

total physical custody of the child with the exception of two (2) forty eight (48)

hour periods a month when Plaintiff Mother had custody of her. To allege that

unexplained bruises, rashes, colds, or a burnt lip were solely the result of the care

the child was receiving from Plaintiff Mother when Defendant Father had custody

the greatest majority of the time, is misplaced.

       There was testimony at the trial from both parents, as well as other

witnesses, that the child is doing well emotionally, physically, and

developmentally. There was no credible evidence presented that demonstrated

that the child's occasional emotional outbursts, temper tantrums, or occasional


                                           29
 hitting were anything more than typical behavior of a two year old child, a toddler.

 There was no evidence presented that Plaintiff Mother's care or treatment of the

 child was the source or cause of any negative behavior exhibited by the child.

        Plaintiff Mother testified as to the numerous times she has contacted doctors

 or sought medical help when the child was sick or injured, and, the care she

 administered to the child when she was sick or hurt. Her testimony was

 corroborated by other witnesses, including, pediatricians who testified. The

 testimony at trial is in direct contradiction to Defendant Father's statement above

 that Plaintiff Mother was "oblivious" to the child's medical conditJons. Indeed,

 defendant father's alternate argument as discussed prior hereto in 2. is that

 Plaintiff Mother brings false charges against Defendant Father based on the child's

medical condition.

       For the above stated reasons, the court did not abuse its discretion in

finding that there is no risk of harm to the child by Plaintiff Mother. Therefore,

Defendant Father's claim is without merit and should be dismissed.

                      "4. The Trial Court abused its discretion in
            finding that Mother has provided the necessary care
             of the child while in Mother's custody, in light of the
            overwhelming evidence to the contrary, including
            but not limited to, a) Mother's failure to provide
            proper medical care for the child during the first two
            months of her life and at other times, and b)
            Mother's failure to properly care for or supervise
            child resulting in excessive bruising and other
            injuries to the child and illnesses suffered by the
            child."

      Plaintiff Mother testified that from the child's birth on December 28, 2010,

until February 27,2011 when Defendant Father took the child to his home, she

provided for the child's- daily care. She fed her, changed her diapers, put her down



                                          30
 for naps, bathed her, and took her to the doctor. N.T. March 25, 2013 at 90.

 Plaintiff Mother stated that she called the doctor "all the time ... any little thing, a

 skin irritation or a runny nose, I was calling the doctor and asking, because .. J

 wanted her to be happy and comfortable." N.T. March 25, 2013 at 90. When

 asked by her counsel, Ms. Sattin, if she took the child for vaccinations, Plaintiff

 mother replied: "She wasn't due for shots, until after E.f>.       took her. At two

 months, she's due for shots ... she had her initial shots in the hospital, and then you

 get them again at two months." N.T. March 25, 2013 at 91. There was also

testimony presented from the pediatrician who treated the child during her first six

months that according to his office's treatment schedule for newborns, the child

missed one vaccination and one check-up according to his office's treatment

schedule for newborns. N.T. August 12, 2013 at 22. The pediatrician also testified

that despite Plaintiff Mother missing the child's one-month checkup, Plaintiff Mother

called the pediatrician at least four times with questions and concerns about the

child. Additionally, Defendant Father testified that while the child was living with

Plaintiff Mother for the first eight weeks of her life, he never called Children and

Youth Services or the police over concerns for the care and safety of the child, and,

in fact, the only concern he did have was that the child "seemed to be a little bit

thin." N.T. June 5,2013 at 113-114.

       Plaintiff Mother testified about her feeding of the child, childcare

arrangements, and the medical care she provided for the child as she grew older.

Plaintiff Mother also testified that when she picked up the child for her periods of

partial custody, on several occasions, she was immediately concerned about the

child's health, and, on one occasion, took the child directly to an urgent care facility



                                            31
 in Wilmington, Delaware on the way home from the custodial exchange. N.T. March

 25, 2013 at 235.

        There was no credible evidence presented by Defendant Father that Plaintiff

 Mother failed to provide for the proper medical care of the child at any time, or that

 Plaintiff Mother has failed to provide for the daily physical and emotional needs of

 the child while the child has been in her custody. As previously stated above, there

 was no credible testimony, much ·Iess "overwhelming evidence" presented by

 Defendant Father that Plaintiff Mother failed to exercise proper supervision or care

of the child which led to the child getting bruised or catching colds. Defendant

Father's claim is not supported by the evidence which was presented at trial, and,

therefore, his claim is without merit and should be dismissed.

                      "5. The Trial Court abused its discretion in
             finding no credible evidence that Mother has
             attempted to turn the child against Father, given
             the overwhelming evidence to the contrary,
             including but not limited to, a) Mother's website,
             Facebook pages, and other online presences, and b)
             Mother's media coverage both online and on
             television, that all set forth false and untrue
             statements about Father, and disclosed confidential
             Orphan's Court matters, which portray Father in an
             extremely negative light and which child will be able
             to see as she gets older and is able to read and get
             online."

       There was testimony presented at trial that Plaintiff Mother published the

details of her custody dispute with Defendant Father on a website, and, a video

presented that she gave interviews to news organizations as well. While it can be

argued that this behavior may not be advisable, there was no evidence presented

at trial that Plaintiff Mother did so with the intention of turning the child against

Defendant Father. Plaintiff Mother testified that "I wanted the story out there so



                                           32
[the child] would know her mother fought for her .. .I also thought this would help

my case." N.T. June 3, 2013 at 258 and 260. At the time of the 2013 trial, the

child was two years old. Therefore, Defendant Father's claim that statements which

Plaintiff Mother posted on the internet or that she made in interviews were

designed to turn the child against Defendant Father are not credible as the child

could not read, or, comprehend the full ramifications of the custody dispute.

Defendant Father's statement that Plaintiff Mother's behavior will impact the child

when she is older "and able to read and get online" is speculative in relation to the

best interests of the child at this time, which is the relevant period of time for the

court to evaluate. Therefore, Defendant Father's claim is without merit and should

be dismissed.

                     "6. The Trial Court abused its discretion in
            finding that the child is doing well physically and
             emotionally while under the care of Mother and in
            finding that Mother is able to attend to the daily
            physical, emotional, developmental, educational and
            special needs of the child in light of the
            overwhelming evidence to the contrary, including but
            not limited to, a) the repeated and excessive
            bruising and other injuries (i.e. burned lips, black
            eye) suffered by the child while in Mother's care, b)
            the numerous rashes and illnesses suffered by the
            child as a result of being in the care of Mother, c) the
            behavior of the child after returning from Mother's
           care such as hitting, head butting, cursing, and
           problems with sleep, , d) the evidence that Mother
           was oblivious about the child's fevers, bruising,
           injuries and illnesses, e) Mother's failure to provide
           proper medical care for the child during the first two
           months of her life and at other times, f) Mother's
           failure to properly care for or supervise child
           resulting in excessive bruising and other injuries to
           the child and illnesses suffered by the child, and g)
           Mother's instability in where she lives, insufficient
           sleeping arrangements for the child at Maternal
           Grandmother's home, her many boyfriends, her job
           history, problems with her brother (and his criminal,


                                          33
               violent and drug history) and problems with Mother's
               son's Father (and his criminal and violent history)."

         Defendant Father's claims in paragraph 6, sections a) through f) have

  previously been addressed by the court in this opinion, and for the previously

  mentioned reasons, they should be dismissed as having no merit. Defendant

  Father's claims that Plaintiff Mother has unstable living arrangements and

  insufficient sleeping arrangements for the child are equally without merit.

         Plaintiff Mother testified that she lives with her Mother, p.   Er.          , in

  Plymouth Meeting, Pennsylvania.       Maternal Grandmother testified that she does

 not have a criminal record, or any history of mental health issues, or drug and

 alcohol abuse. N.T. June 4, 2013 at 194. Plaintiff Mother testified that if she were

 to regain full custody of the child, the child would have her own bedroom while

 living at maternal grandmother's house. Plaintiff Mother, and her current

 boyfriend, K.   P.     , both testified that they were planning on living together at

 Mr. P    's home in Elverson, Pennsylvania following the custody litigation. The

 child would have her own bedroom, and has toys, a large yard , and a swing set at

 Mr. P    's house. Plaintiff Mother and Mr. P      had been dating approximately a

 year and a half at the time of the custody trial. Mr. P       testified that he is

 employed as a banker, and is also involved in real estate and small business

 investment. The testimony presented at trial shows that Plaintiff Mother does not

 have an unstable or insufficient living arrangements for the child. Therefore,

 Defendant Father's claim is without merit and should be dismissed

      There was no evidence presented at trial to support Defendant Father's claim

that Plaintiff Mother had "many" boyfriends since G.D. was born, or that the

number of Plaintiff Mother's boyfriends has had any negative effect on the child, or


                                            34
her best interests. Similarly, there was no evidence that Plaintiff Mother's job

history has had any negative effect on the child. Plaintiff Mother testified that she

quit her job at the "massage parlor" prior to the child's birth. Furthermore, Plaintiff

Mother's past conduct in relation to her dating history or her employment should

not significantly factor into the court's decision as to the best interest of the child as

long as the child is not negatively impacted. "Without evidence of a harmful effect

on the child, a parent's past conduct should have little weight in the court's custody

decision." Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414 (1987); see

also   ~(B.   v. J.E.B,_, 55 A.3d 1193, 2012 PA Super 200 (2012)(holding trial court

erred by invoking Father's prior participation in a nontraditional sexual practice as

grounds for awarding custody of children to grandparents.). Therefore, Father's

claims as to Plaintiff Mother's dating and employment history are without merit and

should be dismissed.

        Defendant Father's claim that Plaintiff Mother has "problems" with her

brother and "problems" with the Father of her son which would warrant denying

her custody of the child are not based on any evidence presented at trial. Plaintiff

Mother specifically testified that at the time of trial, she did not have any recent

contact with her brother or her son's Father. Defendant Father does not state

specifically what "problems" he is referring to, and how these alleged "problems"

negatively impact on the child. Defendant Father's claim is nonspecific and without

merit, and should therefore be dismissed.        Counsel for Defendant Father was

counsel for the entire trial for defendant Father. Therefore, more specific claims

should have been made in his Pa.R.A.P.l025 (b) statement of errors.




                                            35
                               "7. The Trial Court abused its discretion in
                   failing to award Father primary physical custody of
                   the child for the aforementioned reasons and the
                   improper conclusions drawn as to the custody factors
                   1,2,3,4,8,10 under 23 Pa.C.S.A. § 5328 (a)."

             Defendant Father's claims in paragraph 7 of his statement of errors are

 repetitive of the issues he raises in paragraphs 1 through 6 of his statement. As

 previously stated by the court, Defendant Father's claims in paragraphs 1 through

 6   al~e   meritless and should be dismissed.

                               "8. The Trial Court abused its discretion
                   in failing to properly weigh and consider custody
                   factors 11 and 13 under 23 Pa.C.S.A. § 5328(a)
                   when entering its Order, given that the parties live
                   at least 1 and 112 hours apart and that this has been
                   such an extremely high-conflict case."


            Defendant Father does not specify how the court abused its discretion or

failed to properly weigh and consider custody factors 23 Pa.C.S.A. § 5328(a)(1l) or

(13). Defendant Father also does not specify how the distance between the parties'

residences or the fact that he terms this case "high-conflict" bear on the court's

determination as to the best interest of the child. Therefore, the court submits that

paragraph 8 of Defendant Father's Statement is inadequate to merit appellate

review, and the Defendant Father has waived any alleged error by the court.

Pa.R.A.P. 1925(b)(4)(vii).

            The court notes that, in reaching a decision as to custody of the child, the

court took into consideration the level of conflict between the parties pursuant to 23

Pa.C.S.A. § 5328(a)(13) when issuing its Order. On Page 6 of the September 26,

2013 Order, the court states that "the Court does find that there is a level of

conflict between the parents. The Court addresses this conflict below." Pursuant to



                                               36
 that finding, Page 10 of the September 26, 2013 order requires the parties to

 attend co-parenting counseling and are to continue with counseling" until such

 time as the counselor deems it no longer necessary, or, until further order of the

 Court. "

         If there is an optimum time to stop their disagreements, the time is now. As

 the   COUlt   stated in its order, the child at the time of the orders was 2 % years old.

 It is difficult for the court to order the parties to think in a certain way, but the

 order for the parties to follow of September 27, 2013 is in G.D.'s best interests.

G.D,'s best interests are what the court has considered and so should her" parents.

                              "9. The Trial Court abused its discretion
                  in failing to enjoin Mother from disclosing the
                 details of the Adoption and Custody matters on the
                 internet, to the media or to any person or entity
                  not associated with the Custody or Adoption
                 matters, in light of the overwhelming evidence that
                 it would not be in the child's best interest, as much
                 of what Mother disclosed or published were false
                 and untrue statements about Father, and disclosed
                 confidential Orphan's Court matters, which
                 portrayed Father in an extremely negative light.
                 Mother also had future plans for more media and a
                 movie deal, in which child's life would be exposed
                 for all to witness."


        The court previously addressed Plaintiff Mother's posting of information on

the internet and to the news media as stated above under 5 of Defendant Father's

issues. Defendant Father provides no authority to support his claim that the court

is permitted to enjoin Plaintiff Mother from exercising her right of free speech First

Amendment rights, and provides no supporting evidence to support his claim that

Mother's conduct has negatively affected or will negatively affect the best interests

of the child. In addition, Plaintiff Mother testified that she does not have a movie



                                              37
 deal pertaining to the custody or adoption cases, and that " . .I'm not in the media

 anymore. I've decided not to do that." N.T. June 3, 2013 at 290. When asked by

 Ms. Agnew: " ... once this is over ... and there is a ruling ... you plan to go forward with

 more media coverage?", Plaintiff Mother replied: "Probably not, no. I don't plan on

 it, no. Not at all." N.T. June 3, 2013 at 291.

           There was also evidence presented at trial that Defendant Father's sister,

A.       W.         , started a website and also posted information about the adoption

and      cu~,tody   cases, including negative statements made about Plaintiff Mother. The

future impact on the child of reading statements made on either website is

speculative now, although, as previously noted by the court, such behavior is

unadvisable by either party or their families. However, based on Plaintiff Mother's

testimony that no movie deal or further media coverage was forthcoming, and no

evidence to the contrary being submitted by Defendant Father, the court did not

abuse its discretion in not "enjoining" Plaintiff Mother from pursuing what amounts

to speculative endeavors.

          Plaintiff Mother and Defendant Father's claims as raised in their· 1925(b)

statements are without merit, and are not supported by the evidence presented at

trial.

          For the above stated reasons, the court respectfully requests that Plaintiff

Mother's appeal be dismissed, Defendant Father's cross-appeal be dismissed; and

the September 27,2013 order be affirmed.




                                          ,a 9/J 1
                                      BY THE COURT:



                                          /dJt~ ~ ,l£~{~
                                      PATRICIA E. COO NAHAN, J.


                                              38
Copies ofthe above Opinion sent
on ;' ,i,:</_-: to the following:
By First-Class Mail:
Sheryl Rentz, Esquire
Deirdre Agnew, Esquire


Secretary




                                    39
