J-S13027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.A.C.                                  :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 M.J.C.                                  :    No. 1652 WDA 2018

              Appeal from the Order Entered October 25, 2018
                In the Court of Common Pleas of Erie County
                   Civil Division at No(s): No.12211-2017

BEFORE:    BENDER, P.J.E., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.:                                   FILED MAY 8, 2019

      J.A.C. (“Mother”) appeals from the order entered October 25, 2018, in

the Court of Common Pleas of Erie County, which reinstated the previous

custody order entered May 10, 2018, with certain modifications. The May 10,

2018 order awarded Mother and M.J.C. (“Father”) shared legal custody of their

daughters, K.C., born in February 2005, and M.C., born in September 2007

(collectively, “the Children”). The order further awarded Mother sole physical

custody of K.C. and primary physical custody of M.C., and changed Father’s

partial physical custody of M.C. from supervised to unsupervised. After careful

review, we vacate and remand with instructions.

      We summarize the facts and procedural history of this matter as follows.

Mother and Father are married but separated. Prior to these proceedings, the

parties resided together with the Children and with Mother’s daughter from a

previous relationship, R.K. The record indicates that, in January 2017, Father


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S13027-19



made statements of a sexual nature to R.K., who was seventeen years old at

the time. The exact substance of Father’s statements does not appear in the

certified record, but Mother testified that he told R.K. that he “had a crush on

her,” that he “wanted to date her,” and that he and Mother “hadn’t had sex

for so many months.”1 N.T., 10/22/18, at 61. R.K. relayed these statements

to Mother, resulting in the parties’ separation.

       On August 3, 2017, Mother filed a complaint requesting sole legal and

primary physical custody of the Children. In addition, Mother requested that

Father receive supervised partial physical custody through a mutually agreed

upon third party, or through Erie Family Center. Mother averred that she had

been providing Father with supervised partial physical custody of the Children

pursuant to an informal agreement, but that the individual who had been

supervising Father’s custody would no longer be able to do so. The parties

attended a conciliation on January 31, 2018, and signed a consent agreement,

which the trial court entered as a temporary order on February 5, 2018.2 The

order awarded the parties shared legal custody. It further awarded Mother


____________________________________________


1 Father admitted during the custody proceedings that he made an “improper
statement” to R.K. on “January 7th to 8th, 2017.” N.T., 4/25/18, at 69. He
reported to his counselor that he told R.K. “he had a crush on her.” Exhibit A
(Evaluation & Treatment Summary).

2At a point unspecified in the record, Father agreed to undergo a psychological
evaluation, which he completed by the time of the conciliation. The evaluation
report, prepared by Peter von Korff, Ph.D., does not appear in the certified
record.

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primary physical custody of the Children and Father supervised partial physical

custody at Erie Family Center on Monday and Thursday evenings.

       The trial court held a hearing on Mother’s complaint on April 25, 2018,

which it began by interviewing K.C. in camera. K.C. stated that she had been

attending Father’s supervised partial physical custody with M.C., but that she

stopped attending when she learned of Father’s statements to R.K.         N.T.,

4/25/18, at 9-10. K.C. recounted that she learned of Father’s statements by

speaking to R.K. and Mother, and that she does not want to see or talk to

Father. Id. at 9, 11-14. She added that she had participated in counseling

in the past and agreed that additional counseling may be beneficial. Id. at

10, 14-15.

       The trial court next heard testimony from Mother. Mother testified that

she informed K.C. of “some . . . but not all” of Father’s statements to R.K.,

because K.C. was becoming agitated and withdrawn and “was really needing

some answers.” Id. at 20-21. Mother proposed that K.C. should not have

any further contact with Father unless it occurs in a “controlled environment

. . . . maybe with a counselor with her.”3 Id. at 21. Conversely, she testified

that M.C. remains oblivious to Father’s statements and wants to continue

spending time with him. Id. at 22. Mother insisted that the risk Father poses


____________________________________________


3Mother stated that she had located a counselor for K.C. N.T., 4/25/18, at
24.



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to M.C. would increase as she reaches her teen years, as R.K. was a teenager

when Father made his statements toward her, and that his contact with M.C.

should continue to be supervised.4 Id. at 22. She added, “He saw [R.K.] as

his own. He even said that he loved her as his own. I don’t believe he would

be any different with the other two.” Id. at 26.

       Finally, the trial court heard testimony from Father. Father testified that

he had made an effort to cooperate with Mother’s requests and convince her

that he does not pose a threat to the Children. Id. at 33-34. He reported

that he attended counseling with his pastor for the last fifteen months, but

that he would be willing to seek treatment from a new counselor as well. Id.

at 35.   He agreed that he should not resume seeing K.C. immediately but

proposed that he “would like to see her in counseling, getting the help that

she needs with also a direction toward reunification.” Id. at 36-37. He further

agreed that reunification should not begin until “the counselor says that [K.C.]

is ready.” Id. at 38. With regard to M.C., Father proposed that he would “like

to see her 50 percent of the time starting now, realizing that there may have

to be some small bit of reunification counseling to go on both for her and for

me, . . . with that starting immediately.” Id.

____________________________________________


4 After the incident with R.K., Mother learned from Father’s ex-wife that he
had exposed himself to his fifteen-year-old sister-in-law decades ago during
his previous marriage. N.T., 10/22/18, at 56. Mother stressed that Father’s
sister-in-law was also a teenager at the time of that incident. N.T., 4/25/18,
at 22.



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       Following the hearing, on May 10, 2018, the trial court entered a final

custody order, which awarded shared legal custody to both parties. The order

awarded sole physical custody of K.C. and primary physical custody of M.C. to

Mother.5 The order awarded unsupervised partial physical custody of M.C. to

Father beginning at the conclusion of the 2017-2018 school year on Mondays

and Wednesdays from 5:00 p.m. until 9:00 p.m., and on Saturdays from

10:00 a.m. until 9:00 p.m. Moreover, the order awarded unsupervised partial

physical custody of M.C. to Father each weekend, beginning at the start of the

2018-2019 school year, from Friday after school until Sunday at 6:00 p.m.

       On June 5, 2018, Mother filed a motion for emergency relief. Mother

averred that Father’s periods of unsupervised partial physical custody of M.C.

would begin the following day. However, she averred that Erie Family Center

was recommending against unsupervised custody due to alleged inappropriate

behaviors by Father. She attached a report from Erie Family Center, detailing

these behaviors. She requested that Father’s unsupervised custody of M.C.,

and any attempt at reunification with K.C., remain suspended until Father

completes additional counseling. The trial court entered an order on June 5,

2018, directing that Father would continue to exercise only supervised partial

physical custody of M.C. pending further order of court.


____________________________________________


5 The order provided that Mother would select counselors for Father and K.C.,
and that Father would not exercise custody of K.C. “until such time as an
independent counselor would recommend that such visitation is appropriate.”
Order, 5/10/18, at ¶ 2(c).

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       On August 3, 2018, the trial court entered a consent order, permitting

Father to exercise supervised partial physical custody of M.C. at his home,

facilitated by Erie Family Center. The order further directed Father to undergo

counseling with licensed professional counselor, George Dowd, “to address the

issues identified in the Erie Family Center report as well as his inappropriate

behaviors toward minor girls.” Order, 8/3/18.

       The trial court conducted a hearing on Mother’s motion for emergency

relief on October 22, 2018, during which Mother presented the testimony of

Erie Family Center visit supervisor, Margie Olszewski. Ms. Olszewski testified

that she began supervising Father’s custody of M.C. in August 2017. N.T.,

10/28/18, at 29. She reported that Father’s custody went well for eight or

nine months, but that, after learning he would receive unsupervised custody,

Father began displaying “questionable behavior[.]” Id. at 29-30. Specifically,

Ms. Olszewski reported that Father began sitting next to M.C. when they ate

together and on at least one occasion placed his head on her shoulder. Id. at

31, 37. She recalled additional incidents during which Father instructed the

Siri application on his smartphone to “call me sexy,” and showed M.C. a video

of “Bill Cosby . . . doing some comedy talking about dating and dating

women[.]”6 Id. at 31. Ms. Olszewski described another incident during which

____________________________________________


6Ms. Olszewski may have conflated two separate incidents. The Erie Family
Center report indicates that Father “played some old Bill Cosby audio stand-
up comedy from [You]Tube . . . where his son got his tonsils out” on April 2,



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M.C. “crossed her hands over her shoulders and pretended like she was

making out with somebody but [Father] never said like that’s inappropriate,

or anything like that.” Id. at 32. She also described an incident during which

Father and M.C. “were like playing hide and go seek and he picked her up and

threw her on the couch.” Id. at 36. Finally, Ms. Olszewski recalled an incident

during which Father stated to M.C. that he had “kissed a girl, I kissed her long

and I kissed her hard,” quoting the film “The Sandlot,” which M.C. told Father

she had watched. Id.; Exhibit 3 (Erie Family Center report explaining the film

quote).

       Ms. Olszewski acknowledged that Father’s periods of supervised partial

physical custody had “gone back to what they were initially without incident.”

N.T., 10/28/18, at 33. Nonetheless, based on Father’s recent inappropriate

behaviors, she recommended that his custody “remain supervised, and that

he continue to have therapy.” Id. at 34-35, 42. She recommended that his

custody should remain supervised until M.C. “understands what happened,

and that she is of a maturity to be able to look for a warning signal or flags.”

Id. at 42.    She stated, “one or two incidents[] may have not been totally

alarming to me . . . but together in that time frame it was -- it didn’t bode

well with me.” Id. at 32.



____________________________________________


2018. Exhibit 3. The report indicates that, on May 17, 2018, Father showed
M.C. a YouTube video “about a comedian’s rendition of his dating experience!!
Not appropriate!!” Id.

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      The trial court also heard testimony from Mother.       Mother requested

that Father’s custody remain supervised pursuant to the recommendation of

Erie Family Center. Id. at 47. She suggested that Father’s custody remain

supervised “until it’s clear that there is absolutely no risk to [M.C.] anymore.”

Id. Mother reported that she has not informed M.C. of Father’s statements to

R.K. and that she would do so “[o]nly if it becomes necessary . . . I have

discussed it with her counselor, and . . . it may become appropriate in the

future.” Id. at 48. At a minimum, Mother suggested that the counselor should

educate M.C. regarding “things to look for in a sexually inappropriate situation

and how to get out of those,” without providing the details of Father’s

statements. Id. at 48, 50, 58. Mother also expressed concern that the court’s

custody award would permit Father to attend M.C.’s swim meets, at which

K.C. would also be present, which would be “upsetting and disturbing” to K.C.

Id. at 49.

      Additionally, the trial court heard testimony from Father’s counselor, Mr.

Dowd. Mr. Dowd testified that he has been providing weekly counseling to

Father. Id. at 4, 15. He reported that Father’s “therapeutic involvement has

been very good. He’s been very open and honest[,]” and that his “prognosis

looks very positive at this point.” Id. at 6. He added, “I certainly don’t see

him as a threat to perpetrate any type of assault or crimes . . . he’s very

remorseful and he’s taken full responsibility.” Id. at 6-7. Concerning Father’s

behaviors during his recent custody of M.C., Mr. Dowd blamed “[t]he optics of


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J-S13027-19


the situation given the scrutiny” that Father was under. Id. at 9. He opined,

“I really don’t think there was any ill intent but certainly because he’s being

observed and supervised with his visits, you know, some judgment issues . . .

could have been handled in a different manner.” Id. With respect to Erie

Family Center’s recommendation that Father’s custody remain supervised, Mr.

Dowd stated, “I just don’t see a need for that at this point, based on his past

behavior in our therapy sessions that I’m seeing.” Id. at 23.

      Finally, the trial court heard testimony from Father. Father insisted once

again that he had tried to do everything possible to cooperate with Mother’s

requests and for “our family to be healed.” Id. at 70-73. He also maintained

that he did not intend his recent behaviors toward M.C. to be sexual. Father

agreed that he had placed his head on M.C.’s shoulder but stated that he had

done so previously and that “[a]pparently Margie didn’t see me do it before.”

Id. at 74. He also stated that there was nothing unusual about him sitting

next to M.C. Id. at 74-75. Father admitted that he asked the Siri application

on his phone to “call me sexy” and that this behavior had been inappropriate.

Id. at 75. He stated that he saw a character do the same thing on the “The

Big Bang Theory” television show, and was “just -- trying to make a joke[.]”

Id. Finally, concerning the allegation that he showed M.C. an inappropriate

video, Father stated, “[i]t was a video, it wasn’t Bill Cosby . . . . About ten

seconds into it I realized it wasn’t appropriate, I couldn’t tell that by the title

of it, so I shut it off.” Id. at 74. Father suggested that he engaged in these


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J-S13027-19


inappropriate behaviors because “it was just a relief.     We had been going

through supervised visits for, [at] that point in time, . . . a year plus four

months, five months, and it was just, okay, we’re finally going to get our lives

back, you know, into a normal state and I honestly -- I -- I screwed up.” Id.

at 78. Father maintained that he intended to continue receiving counseling

from Mr. Dowd, and proposed that he should receive shared physical custody

of the Children, although he was not “pressing or pushing” to have custody of

K.C. immediately. Id. at 76.

       On October 25, 2018, the trial court entered the order complained of on

appeal, which reinstated the previous order of May 10, 2018, subject to certain

modifications.7 The order provided that Father would exercise unsupervised

partial physical custody of M.C. beginning on Monday, October 29, 2018. As

was the case in the previous order, Father would exercise custody on Mondays

and Wednesdays from 5:00 p.m. until 9:00 p.m., and on Saturdays from

10:00 a.m. until 9:00 p.m. Beginning in January 2019, Father would exercise

custody each weekend, from Friday after school or 5:00 p.m. if there is no

school, until Sunday at 6:00 p.m. The order contained additional provisions

prohibiting Father from appearing at K.C.’s swim meets and practices, and

directing Father to continue with counseling “for as long as deemed necessary



____________________________________________


7The Honorable Shad Connelly presided over the April 25, 2018 hearing and
entered the May 10, 2018 order. The Honorable Joseph Walsh, III, presided
over the October 22, 2018 hearing and entered the October 25, 2018 order.

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by Mr. Dowd.” Order, 10/25/18, at ¶ 7. Finally, and of particular significance

to this appeal, the order directed that Mother “shall not relay, or cause to have

relayed, any information to [M.C.] regarding the facts and circumstances of

Father’s inappropriate communications with [M.C.’s] half-sister [R.K.], absent

Father’s consent or further order of court.” Id. at ¶ 8.

      Mother filed a motion for reconsideration on November 5, 2018, in which

she averred that the trial court erred by modifying the parties’ custody award

without considering the factors set forth at 23 Pa.C.S.A. § 5328(a). She also

averred that the provision in the court’s order prohibiting her from informing

M.C. of Father’s statements to R.K. was improper, because it prevented her

from protecting M.C. from abuse, and made her responsible should R.K. inform

M.C. of Father’s statements. On November 7, 2018, Father filed a petition for

special relief. Therein, Father averred that Mother might refuse to comply

with the October 25, 2018 order, and requested that the court direct the police

to enforce compliance. The court entered an order on November 13, 2018,

directing the parties to comply with the October 25, 2018 order, and directing

the police to enforce the order if either party disobeyed its provisions. Mother

timely filed a notice of appeal on November 20, 2018, along with a concise

statement of errors complained of on appeal.

      Mother now raises the following issues for our review.

           A. The [trial c]ourt erred and abused its discretion in its
      October 25, 2018 Order issued as a result of [Mother’s] Motion for
      Emergency Relief by reinstituting in part and modifying in part the
      underlying custody order entered May [10], 2018 by shortening

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      the initial period of unsupervised daytime visits at paragraph
      number 4(a) when the court failed to utilize the child’s best
      interest standard as directed by 23 Pa. C.S.A. § 5328 and
      specifically 23 Pa. C.S.A. § 5328(a)(2) and instead used an
      appropriateness standard to allow unsupervised visits despite well
      documented evidence through testimony presented to the court
      by the direct supervisor of supervised visits and by the defendant,
      [Father], demonstrating [Father] acted sexually inappropriately in
      front of the child as soon as he learned he would no longer have
      unsupervised visits pursuant to the Custody Order [entered] May
      [10], 2018 and [Father] testified that he did not know when his
      behavior was inappropriate in front of the child until after the fact.

            B. The court order erred by restricting the [m]other’s
      speech regarding “facts and circumstances of [F]ather’s
      inappropriate communications with [M.C.’s] half-sister” because it
      substantially restricts [Mother’s] ability to protect the child
      pursuant to 23 Pa. C.S.A. § 5328(a)(2), (a)(3) and (a)(8), limits
      her first amendment speech, is contrary to the child’s best
      interests under 23 Pa. C.S.A. § 5328 and the evidence presented
      does not substantiate the “gag order” when testimony and
      evidence demonstrated that the child is naïve, does not recognize
      inappropriate sexual conduct and the father engages in such
      conduct in front of the child.

             C. The court erred by ordering the plaintiff [M]other to
      control speech of third parties[] (which would include [Father’s]
      now adult step-daughter who is the child’s half-sister) and prevent
      third parties from informing the child of “facts and circumstances
      of [F]ather’s inappropriate communications with [M.C.’s] half-
      sister” because the court’s order is overly broad, unduly
      burdensome, and does not conform to the best interest of the child
      standard under 23 Pa. C.S.A. § 5328.

Mother’s brief at 3-4.

      We review Mother’s claims in accordance with our well-settled standard

of review.

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual


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     determinations. In addition, with regard to issues of credibility
     and weight of the evidence, we must defer to the presiding trial
     judge who viewed and assessed the witnesses first-hand.
     However, we are not bound by the trial court’s deductions or
     inferences from its factual findings. Ultimately, the test is whether
     the trial court’s conclusions are unreasonable as shown by the
     evidence of record. We may reject the conclusions of the trial
     court only if they involve an error of law, or are unreasonable in
     light of the sustainable findings of the trial court.

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

     When a trial court makes an award of custody, the best interest of the

child is paramount. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014).

The factors that a court must consider when awarding custody are set forth

at Section 5328(a):


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

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

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

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

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




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           (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.

           (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).


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       In its opinion, the trial court did not conduct an analysis of the Section

5328(a) factors. The court reasoned that it did not need to analyze the factors

because its order did not award a form of custody, nor did it modify the form

of custody set forth in its prior order of May 10, 2018. Trial Court Opinion,

12/18/18, at 17. It explained that it awarded unsupervised custody based on

its credibility and weight determinations in favor of Father and Mr. Dowd.8 Id.

at 5-15. The court further rejected Mother’s concerns regarding the provision

prohibiting her from informing M.C. of Father’s statements to R.K. The court

reasoned that informing M.C. of these statements would cause her emotional

harm. Id. at 18. It explained that K.C. is in counseling to address “problems

created by hearing of Father’s statements[.]” Id. It added that the provision

did not make Mother responsible for the conduct of third parties. Id. at 19.

The court observed, “[t]he order applies only to Mother’s behavior in ‘relaying’

or ‘causing to have relayed’ the stated information, therefore, on its face the

order does not require Mother to control the speech or behavior of anyone

other than herself.” Id.

       In her first claim, Mother asserts that the trial court abused its discretion

by “modifying and shortening the period of time for daytime unsupervised



____________________________________________


8The trial court also relied on the conclusion contained in Dr. von Korff’s report
that Father does not pose a threat to M.C. Trial Court Opinion, 12/18/18, at
12-15. As stated above, Dr. von Korff’s report is not contained in the certified
record.


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visits.” Mother’s brief at 28. She maintains that the court’s order was contrary

to the evidence and unreasonable, and that the court should have considered

M.C.’s safety pursuant to 23 Pa.C.S.A. § 5328(a). Id. at 29-38. She reviews

the evidence presented during the custody proceedings at length, and argues

that the court should have weighed and interpreted this evidence differently.

Id. She also maintains that the court appeared to “protect” Father during the

hearings and blamed her for Father’s damaged relationship with K.C. Id. at

34-35.

       As explained above, the trial court did not analyze the Section 5328(a)

factors in its opinion. While the court states that it did not need to conduct

an analysis of the factors, we disagree. Generally, a court must assess each

of the factors at any time it modifies an award of custody.9 A.V. v. S.T., 87

A.3d 818, 822 (Pa. Super. 2014). Here, the trial court modified the parties’

custody award by shortening the amount of time that Father would exercise

unsupervised partial physical custody of M.C. during the day before beginning

to exercise unsupervised custody overnight. While this may seem like a small

change, we find that it was particularly important for the court to conduct a


____________________________________________


9 Trial courts need not analyze the Section 5328(a) factors when considering
“discrete and ancillary disputes relating to custody” such as “a dispute over a
custody-exchange location; which youth sports the children should play; or
whether a parent should be required to have children’s toys, beds, or other
things in his or her house.” S.W.D., 96 A.3d at 403 (footnote omitted).




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full and thorough analysis of M.C.’s best interest, given the difficult facts of

this case and the seriousness of Father’s admissions regarding his statements

to R.K.10

       Moreover, even accepting for the sake of argument that the October 25,

2018 order did not modify the parties’ custody award, it was still necessary

for the trial court to conduct an analysis of the Section 5328(a) factors. This

Court has explained that an analysis of the factors is required even when a

court denies a petition to modify custody and orders the parties to comply

with an existing custody order. S.W.D., 96 A.3d at 406. The critical inquiry

in such a situation is whether the petition to modify requested a change to the

underlying form of custody. See id. (“Even if the trial court only reaffirmed

its prior order, it nonetheless was ruling upon a request to change the form of

physical custody and, therefore, bound to decide whether the prior order

remained in Child’s best interest.”). In the instant matter, Mother requested

in her motion for emergency relief that the court modify the parties’ underlying

form of custody by eliminating Father’s unsupervised custody with M.C. and

restricting him to supervised custody only. Accordingly, we vacate the order

of October 25, 2018, and remand for the court to assess the Section 5328(a)

factors and enter a new custody order.


____________________________________________


10 Father did not contest the provisions of the May 10, 2018 and October 25,
2018 orders limiting his contact with K.C. during the trial court proceedings
and Mother does not contest those provisions on appeal. Accordingly, like the
trial court, we focus our analysis on M.C.

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      We next turn our attention to Mother’s interrelated second and third

claims, in which she challenges the provision in the October 25, 2018 order

prohibiting her from informing M.C. of Father’s statements to R.K.         In her

second claim, Mother contends that this provision is improper because it

restricts her ability to protect M.C. from Father indefinitely, violates her First

Amendment right to free speech, and is contrary to M.C.’s best interests.

Mother’s brief at 38-44. Mother focuses her argument on this Court’s recent

decision in S.B. v. S.S., 2018 WL 6729838 (Pa. Super. 2018), reargument

denied (Mar. 4, 2019), in which we addressed the circumstances under which

a custody trial court may restrict a parent’s speech. She asserts that a court

may restrict a parent’s speech only when it is causing or will cause harm to a

child’s welfare. Mother’s brief at 39. She maintains that informing M.C. of

Father’s statements will not harm M.C. but may actually protect her from

future abuse. Id. at 40, 42-44. Mother observes that none of the mental

health professionals who testified during the proceedings recommended a

restriction on her speech. Id. at 42-44. In her third claim, Mother maintains

that the provision makes her responsible for ensuring that other people do not

inform M.C. of Father’s statements, and that it is unduly burdensome and

overly broad. Id. at 44-47. She points out that R.K. continues to live in her

home, as do both of the Children, and that, “it is likely the sisters will

communicate . . . . and Mother will be blamed for the disclosure of Father’s

poor behavior.” Id. at 45-46.


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       Upon review, the record does not support the trial court’s determination

that it would be in M.C.’s best interest to prohibit Mother from informing her

of Father’s statements to R.K.11 While the court found that learning of Father’s

statements would be harmful to M.C., the court based this conclusion solely

on the fact that K.C. does not want to see Father and attends counseling. The

court heard no testimony from M.C.’s counselor, or from any other individual

qualified to opine12 on if, when, or how, M.C. should learn of these statements,

or what harm she might experience as a result. To the extent the record does

address these issues, Mother testified that she received advice from mental

health professionals both supporting and opposing the idea of informing M.C.

of Father’s statements, and that she had discussed the matter with M.C.’s

counselor. N.T., 10/22/18, at 48, 53. Therefore, the court’s conclusion in this

regard was speculative. Absent a more developed record on these issues,

including the presentation of expert testimony, the court abused its discretion.

See E.A.L. v. L.J.W., 662 A.2d 1109, 1119 (Pa. Super. 1995) (remanding a

custody case because of, among other things, the trial court’s “failure to obtain


____________________________________________


11We need not reach the merits of Mother’s constitutional challenge, as we
are able to resolve this appeal on other grounds. See Ballou v. State Ethics
Commission, 436 A.2d 186, 187 (Pa. 1981) (“It is well settled that when a
case raises both constitutional and non-constitutional issues, a court should
not reach the constitutional issue if the case can properly be decided on non-
constitutional grounds.”) (footnote omitted).
12Ms. Olszewski testified that she possesses a bachelor’s degree in mental
health counseling and “many certifications in early childhood development”
but she did not testify as an expert. N.T., 10/22/18, at 39-40.

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expert testimony which was necessary to resolve the critical issues raised by

the particular circumstances of this case, and the making of findings which

were not supported by the evidence[.]”).

     As a final matter, the record also belies the trial court’s decision to reject

Ms. Olszewski’s testimony and the recommendation of Erie Family Center that

Father should not exercise unsupervised custody of M.C. In its opinion, the

court focused on Ms. Olszewski’s mistaken belief that the inappropriate video

Father played for M.C., describing a comedian’s dating experience, was of Bill

Cosby. The court explained:

           The Erie Family Center notes document visits back to August
     of 2017. As Ms. Olszewski testified, the vast majority of the visits
     went very well. The first visit that appears to correspond with Ms.
     Olszewski’s testimony of a problem is dated April 2, 2018 and
     relates to Father playing a YouTube video of Bill Cosby. The note
     indicates the video was about a boy getting his tonsils out and
     that M.C. became disinterested after watching it for five minutes.
     The note does not indicate that the video was off-color or the
     content otherwise inappropriate. It merely states parenthetically
     that Ms. Olszewski “felt the video an odd choice.”

            The next indication of what Ms. Olszewski considered a
     problem at trial, was dated May 10, 2018 - over a month after the
     Bill Cosby incident. The note indicates that the visit went well,
     but toward the end they sat on the couch briefly and Father put
     his head on the child’s shoulder. The note differs from Ms.
     Olszewski’s in court [testimony] in that it says the incident
     occurred at the tail end of a visit, not when they were eating.

           The May 10, 2018 note also recorded that the Family Center
     was advised unsupervised visits would begin at the end of the
     school year. After the May 10, 2018 visit, there were only three
     more visits before the Family Center issued its recommendation
     that visits remain supervised: A visit May 14, 2018, when the “Siri
     call me sexy” incident occurred; A visit May 17, 2018 where two
     of the incidents occurred - the one where M.C. embarked on some

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      pretend kissing, and the one where Father started a video on
      YouTube of an off-color stand-up comedy routine and then shut it
      off (there is no mention of Bill Cosby in that note); and lastly, a
      visit on May 21, 2018 where M.C. reported she had watched the
      movie “Sandlot,” which prompted Father to jokingly quote from
      the movie about kissing girls. Thus, it would appear that contrary
      to Ms. Olszewski’s testimony, the incidents she found
      objectionable actually began well before Father was granted
      unsupervised visits. In comparing her testimony with her written
      notes, it appears Ms. Olszewski allowed some of the incidents to
      run together in her mind, and she reconstructed her timeline
      during her testimony, likely inadvertently, to support her
      conclusions that (1) Father’s conduct was indicative of a problem,
      and (2) that it related to his knowledge that he would soon have
      the child unsupervised.

Trial Court Opinion, 12/18/18, at 13-14.

      Contrary to the trial court’s analysis, our review of notes of testimony

and the Erie Family Center report indicates that every concerning incident that

Ms. Olszewski reported took place shortly after Father learned that he would

receive unsupervised custody of M.C. on May 10, 2018. The fact that Ms.

Olszewski confused one of those incidents (the inappropriate comedy routine)

with a prior incident she did not find concerning (the Bill Cosby video) does

not indicate that the “incidents she found objectionable actually began well

before Father was granted unsupervised visits” as the court determined. Id.

at 14. Further, this minor inconsistency in Ms. Olszewski’s testimony does not

demonstrate that she “reconstructed her timeline during her testimony . . . to

support her conclusions[.]” Id.

      Based on the foregoing analysis, we vacate the trial court’s October 25,

2018 order, and remand for further proceedings, including the presentation of


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expert testimony. After hearing this additional evidence, the court shall enter

a new custody order, along with an analysis of the Section 5328(a) factors.

All provisions of the prior October 25, 2018 order, including the restriction on

Mother’s ability to inform M.C. of Father’s statements to R.K., shall remain in

effect until the court enters its new order.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

      President Judge Emeritus Bender joins this memorandum.

      Judge Strassburger files a concurring and dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2019




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