Reynolds, T. v. Reynolds, K.

J-A06018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS H. REYNOLDS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KELLY A. REYNOLDS : No. 889 WDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD18-009323-004
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: MAY 9, 2022
Thomas Reynolds (“Father”) appeals from the final order awarding Kelly
Reynolds (“Mother”) sole legal and physical custody of the parties’ daughters,
G.R. and S.R. (collectively, “the Children”), born in February 2005 and
November 2007, respectively.1,2 We affirm.
Father and Mother married in 2000, and after years of discord, they
separated in 2018. Around the time of their separation, Father and Mother
initially agreed that Mother would continue to live with the Children in the
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* Retired Senior Judge assigned to the Superior Court.
1 Because neither party has applied to this Court for the use of the parties’
initials, we refer to the parties’ full names given in the trial court’s caption.
See Pa.R.A.P. 904(b)(2); Pa.R.A.P. 907.
2 The parties’ eldest daughter, K.R., turned 18 years old during the litigation
of this custody matter, and she was not a subject of the trial court’s final order
or this appeal.
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marital home, Father would move out, and the Children would have dinner
once a week with Father.
Father commenced the underlying custody action in January 2019,
seeking shared legal and physical custody. Mother, Father, and the Children
began family therapy and mediation with Kathryn Gibson (“Ms. Gibson”). The
Children also began mental health treatment. Father filed numerous
emergency motions for special relief documenting his concerns over his
deteriorating relationship with the Children. See Motion for Special Relief-
Custody, 5/16/19, at unpaginated 2-4; Motion for Special Relief-Custody,
8/12/19, at unpaginated 2-4. Father alleged Mother interfered with his
custodial time, his access to the Children’s treatment records, and his
relationship with the Children. Father also alleged that the Children suffered
increasing mental health issues while under Mother’s care. Throughout 2019,
the trial court granted Father periods of physical custody, which increased
from supervised custody to unsupervised overnight custody. See Interim
Consent Order, 8/12/19; Interim Order, 11/26/19.
However, the relationship between Father and the Children continued to
deteriorate. G.R., who had previously exhibited signs of “anxiety” and
“sensory difficulties,” suffered a marked decline in her mental health and
physical condition. See Trial Court Opinion, 9/28/21, at 8-9. She developed
insomnia, gastrointestinal issues, and nightmares, and was eventually
diagnosed with post-traumatic stress disorder (“PTSD”), anxiety, depression,
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and migraines. See id. S.R. also exhibited signs of PTSD.3 See N.T., 7/8/20,
at 868-70, 1223-24. In August 2019, based on the recommendation of G.R.’s
mental health provider, the trial court excused G.R. from attending Father’s
custodial time and family therapy sessions. See Order, 8/12/19. By April
2020, Father exercised none of his custodial time with the Children, and the
family stopped seeing Ms. Gibson. See N.T., 7/8/20, at 892, 907.
In June and July 2020, the trial court conducted a nine-day custody trial.
Father and Mother were represented by counsel and both testified. The parties
called expert witnesses. Mother presented testimony from a court-appointed
psychologist, Eric Bernstein, Psy.D. (“Dr. Bernstein”), and Father presented
the testimony of Robert Evans, Ph.D. (“Dr. Evans”). Dr. Evans discussed
Father’s claim that Mother had engaged in “parental alienation” based, in part,
on his review of Dr. Bernstein’s reports.4 Additionally, Mother and Father each
called a therapist to discuss proposed therapeutic interventions for the family.
The Children testified in camera.
On July 31, 2020, the trial court entered an interim custody order for
shared legal custody and Mother’s primary physical custody of the Children.
See Interim Custody Order, 7/31/20. The court rejected Father’s claim that
Mother engaged in parental alienation. See id. ¶ 3. The trial court directed
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3 K.R. was also diagnosed with PTSD.
4 Dr. Evans described parental alienation as “where you have someone
encouraging [or] reinforcing” a child’s rejection of a parent. N.T., 6/19/20, at
441.
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therapeutic intervention for the family with Mother’s proposed therapist, Dr.
Ruth Zitner.5 The trial court directed Father and Mother to attempt to agree
to the entry of a partial custody order within ten days of the conclusion of Dr.
Zitner’s therapy, or, if they could not agree, submit a proposed final custody
order within twenty days of the conclusion of Dr. Zitner’s therapy. The court
noted on the record that it would enter its final order without further evidence
or testimony. See N.T., 7/31/20, at 1691, 1694. Father did not object to the
timing set forth in the interim custody order or the trial court’s ruling that it
would decide the case without further evidence. See id. at 1695.
In March 2021, Mother requested the entry of a final custody order,
claiming, in part, that Dr. Zitner’s therapeutic intervention had ended
unsuccessfully.6 Mother requested sole legal and physical custody of the
Children. Father opposed Mother’s request and objected to Mother’s attempt
to introduce new evidence regarding Dr. Zitner’s therapeutic intervention
without an additional hearing. Further, Father proposed that the trial court
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5 The court directed that G.R. receive clearance from her mental health
provider to participate in family therapy with Dr. Zitner and allowed her to
choose whether to participate.
6 Mother filed a protection from abuse (“PFA”) petition against Father due to
alleged threatening messages he left her. See N.T., 3/10/21, at 5-6.
Following a hearing in March 2021, the PFA court dismissed Mother’s petition.
The PFA court noted that Father’s language was “obnoxious, inappropriate,
and consistent with the level of vitriol that was expressed in many documented
. . . messages,” but determined that his conduct did not “rise to the level of
placing someone in reasonable fear of imminent serious bodily injury.” Id. at
35.
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direct Father and the Children to attend his preferred therapeutic intervention
program at Turning Points for Families.
The trial court convened a hearing and placed its findings on the record.
The court awarded Mother sole legal and physical custody of the Children.
See N.T., 5/21/21, at 3-16. On June 30, 2021, the court entered the final
custody order.7 Father timely appealed and complied with Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court filed a responsive Rule 1925(a) opinion.
Father raises the following issues, which we have reordered for review:
1. Whether the [t]rial [c]ourt abused its discretion and
committed an error of law in its application of the custody
factors at 23 Pa.C.S.A. § 5328.
2. Whether the [t]rial [c]ourt abused its discretion and erred as
a matter of law in its consideration of Factor 2 and 2.1 by
finding the factor weighs in favor of Mother, despite no
evidence of abuse by Father, no evidence of risk of harm to
the [C]hildren or the other parent by Father, and no evidence
of Father being unable to provide adequate physical
safeguards and supervision of the [C]hildren.
3. Whether the [t]rial [c]ourt abused its discretion and erred as
a matter of law by concluding that the [C]hildren had
“genuine fear” of Father, despite the lack of evidence about
abuse and where eyewitnesses to custody between Father
and the [C]hildren disputed the testimony of the [C]hildren.
4. Whether the [t]rial [c]ourt abused its discretion and erred as
a matter [of] law by finding that Factor 7 favored Mother
where the preference of the [C]hildren was not mature, nor
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7 The court’s final order permitted the Children to visit and communicate with
Father at their discretion. It also granted Father access to the Children’s
school, medical, and extracurricular records, and required Mother to share
information concerning the Children’s health and welfare.
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well-reasoned, and the judgment of the [C]hildren was
impaired.
5. Whether the [t]rial [c]ourt abused its discretion in
determining that Factor 1, regarding encouraging frequent
and continuing contact, favors Mother where the [c]ourt
admits in the factors analysis that Mother has not supported
Father’s contact with the [C]hildren and that “neither parent
is blameless” and where the [t]rial [c]ourt incorrectly stated
that Father proposed cutting off all of Mother’s custody time,
and the [t]rial [c]ourt was incorrect to consider statements
and proposals in Father’s pretrial statement as record
evidence.
6. Whether the [t]rial [c]ourt abused its discretion as to Factor
8, attempts to turn the child against the other parent, by
determining that the factor favored Mother even where the
[c]ourt acknowledged that Mother is not guiltless and that
both parties exhibited problematic conduct.
7. Whether the [t]rial [c]ourt abused its discretion in finding that
Factor 13, willingness and ability to cooperate, favored
Mother where the [c]ourt openly admits that neither party is
able to cooperate and that neither party is blameless.
8. Whether the [t]rial [c]ourt abused its discretion in finding that
Mother did not engage in parental alienation, where the
[c]ourt appointed psychologist, deemed credible by the [t]rial
[c]ourt, testified that Mother had engaged in parental
alienation and “parental alienation syndrome” was not argued
by Father’s expert, contrary to the finding of the [c]ourt.
9. Whether the [t]rial [c]ourt abused its discretion in considering
Father’s work ethic without consideration of Father’s
availability to the [C]hildren in conjunction with the ability to
make appropriate child[-]care arrangements, as set forth in
the [c]ourt’s analysis of Factor 12.
10. Whether the [t]rial [c]ourt abused its discretion in finding that
Father never had a sturdy, strong bond with the [C]hildren
where Father, Mother and the [C]hildren lived together as an
intact family until the [C]hildren were 13 and 10 years old
before the separation in October 2018, and where Father did
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attempt to engage in custody and vacations with the
[C]hildren after the separation.
11. Whether the [t]rial [c]ourt abused its discretion and erred as
a matter of law in awarding Mother sole legal custody of the
[C]hildren.
12. Whether the [t]rial [c]ourt abused its discretion and
committed an error of law by entering an order which
provided Mother with sole physical custody, and Father with
zero scheduled custody of the [C]hildren, except custody
which is specially requested by Father, with said request
being filtered through Mother, and which will take place only
at the discretion of the [C]hildren, where the [C]hildren are
clearly unreasonable in their hesitance to engage in custody
with Father.
13. Whether the [t]rial [c]ourt abused its discretion and erred as
a matter of law in awarding Father zero custodial periods, and
failing to award additional reunification programs, where
there was no credible evidence that Father is a threat to the
[C]hildren or to Mother.
14. Whether the [t]rial [c]ourt erred in failing to order the use of
Father’s proposed reunification counseling, which counseling
had a much higher chance of success, instead ordering the
use of Mother’s expert’s reunification counseling, which had a
lower chance of success, and which in fact failed.
15. Whether the [t]rial [c]ourt abused its discretion and
committed an error of law by refusing to allow Father the right
to call Kathryn Gibson, an independent witness
knowledgeable about the case, on rebuttal and by refusing to
allow Father to testify on rebuttal.
16. Whether the [t]rial [c]ourt abused its discretion and
committed an error of law by entering only an interim order
following the parties’ nine-day custody trial and by only
entering a final order on May 21, 2021, without allowing any
further testimony or admission of evidence be presented.
Father’s Brief at 4-8.
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Father’s first ten issues contend that the trial court abused its discretion
when deciding the Children’s best interests under the Child Custody Act (“the
Act”), 23 Pa.C.S.A. §§ 5321-5340.
In custody cases under the Act, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
deductions or inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the conclusions
of the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
This Court consistently has held that
the discretion that a trial court employs in custody matters should
be accorded the utmost respect, given the special nature of the
proceeding and the lasting impact the result will have on the lives
of the parties concerned. Indeed, the knowledge gained by a trial
court in observing witnesses in a custody proceeding cannot
adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation omitted).
In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
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review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (internal
citations omitted).
It is well settled that in any custody case decided under the Act, the
paramount concern is the best interest of the child. See 23 Pa.C.S.A. §§
5328, 5338. Section 5328(a) sets forth the best interest factors that a court
must consider in awarding custody. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2
(Pa. Super. 2011). Specifically, section 5328(a) provides:
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
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(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).
The record on appeal must clearly demonstrate that the trial court
considered all of the factors listed in section 5328(a). J.R.M. v. J.E.A., 33
A.3d 647, 652 (Pa. Super. 2011).
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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. Additionally, section 5323(d) requires
the trial court to set forth its mandatory assessment of the sixteen
section 5328(a) custody factors prior to the deadline by which a
litigant must file a notice of appeal. . ..
In expressing the reasons for its decision, there is no
required amount of detail for the trial court’s explanation; all that
is required is that the enumerated factors are considered and that
the custody decision is based on those considerations. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with section 5323(d).
A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (internal citations,
quotation marks, and brackets omitted). In addition to our deference to the
trial court’s credibility and weight determinations, we are mindful that it is
within the trial court’s purview as finder of fact to determine which factors are
most salient and critical in each particular case. See M.J.M. v. M.L.G., 63
A.3d 331, 339 (Pa. Super. 2013).
In his second, third and fourth issues, Father claims that the trial court
abused its discretion or erred in finding that he posed a threat to the Children’s
welfare. As to factor 2 (present and past abuse) Father asserts that the record
established he did not physically abuse or harm the Children.8 Father’s Brief
at 45 (discussing the definition of “abuse” under the PFA Act). Father
maintains that his “angry outbursts” and “hateful language” did not place the
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8 Father also contends that the trial court also failed to consider factor 2.1,
which required the court to consider information from reports of child abuse
related to child protective services. See Father’s Brief at 45. However, he
acknowledges that there was no evidence that child protective services were
involved in this case. See id.- 11 -
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Children in reasonable fear of imminent serious bodily injury. Id. at 45-47,
49. In conjunction with factor 7 (preference of the child), Father claims that
the Children did not “genuinely fear” him and that their stated preferences not
to see him based on minor episodes and complaints evidenced their
immaturity and lack of informed insight. See id. at 48, 50-51, 53-56.
The trial court, in its Rule 1925(a) opinion, explained its finding of abuse
under factor 2. The court recognized that “physical abuse was not the issue
in this case.” Trial Court Opinion, 9/28/21, at 24. The court noted, however,
that Father ignored the testimony that his anger management issues,
“create[d] a fearful atmosphere that is unpleasant and unpredictable enough
to create a sense of threat to the Children.” Id.
The trial court continued that an “aggravating factor” in the family
dynamics “has always been the unpredictable nature of Father’s outbursts,
which created a household filled with tension.” Id. The court found credible
an incident when Father got angry at S.R. when she missed shaking hands
with their priest and punished her by making her get out of the car and walk
home. See id. at 4-6. Further, the court found that Father cursed and got
angry for days when he thought K.R. hit him when they were playing in a pool
on vacation. See id. at 4-6. The court further explained:
Throughout the trial, it became evident to this Court that
Father is easily hurt and readily perceives himself as the subject
of criticism and disrespect, which in turn often leads to his
outbursts. At one time, the family got a puppy, and K.R. picked
the dog up, but Father believed K.R. was holding the dog like a
“forklift.” He couched his complaint as an act of caring in that he
stated he feared the dog would bite K.R., but his actions included
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throwing scissors down onto the kitchen island and yelling. He
went outside, apparently to cool off, but did not regain control and
began “telling the kids they’re horrible and they’re disrespectful
and that they’re going to hurt the dog . . ..”
Id. at 6.
Additionally, the trial court found that “Father has thrown objects,
shouted and used aggressive language . . . and that [he] acknowledged that
the [C]hildren had witnessed Father throwing objects in anger.” Id. at 24.
The court concluded that “Father’s hair-trigger outbursts create an
emotionally oppressive environment” for the Children creating a “grinding,
relentless[,] and exhausting psychological oppression that results from
endless conflict.” Id. Further, when weighing the Children’s preferences
pursuant to factor 7, the court found that the Children “appear[ed] coherent,
gave reasons for their preferences[,] and did not seem immature and arbitrary
in their wishes” not to see Father. Id. at 28.
Our review establishes that the record supports the trial court’s findings.
The trial court had the opportunity to observe all of the witnesses in person
and over the course of the lengthy litigation in this custody matter. In
particular, we note that the trial court credited Dr. Bernstein’s opinions that
Father’s physical outbursts should not be minimized. N.T., 6/10/20, at 176.
As Dr. Bernstein explained:
If the [C]hildren are viewing anything from throwing objects
or the effect of punching a wall or anything of that nature, that
signifies and communicates a message to the [C]hildren that
there’s a propensity for violence, that if they, for example, say the
wrong thing or if they upset their father, that they could
ultimately, even if it’s not rational, that they could ultimately be
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victim to that sense of explosiveness. And even though it may
never have directly impacted them physically, that doesn’t remove
the fear that may be associated with those actions.
Id. at 176-77.
Although Father’s conduct may not rise to the level of the legal definition
of “abuse” in other contexts, it was within the province of the trial court, in
assessing the Children’s best interest, to credit Mother’s, the Children’s, and
Dr. Bernstein’s testimony on how Father’s conduct affected the Children over
the course of years, and how his lack of insight exacerbated the situation
between them. As the trial court noted, the Children are particularly sensitive;
yet, Father does not appreciate how his anger and conduct affects them. See
Trial Court Opinion, 9/28/21, at 12, 24-25. Rather, he attempts to minimize
their feelings toward him as overreactions to minor outbursts. See Father’s
Brief at 46, 55-56. Based on the foregoing, we discern no abuse of discretion
in the trial court’s findings that factors 2 and 7 favored Mother.9
Father’s next four issues, five through eight, focus on factors 1
(encouragement of contacts), 8 (attempts to turn the child against the other
parent), and 13 (conflict between the parties and ability to cooperate). See
Father’s Brief at 38-41, 57-58, 61-62. Father emphasizes the trial court’s
finding that neither he nor Mother are “blameless,” and highlights the evidence
that Mother engaged in parental alienation and discouraged Father’s
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9Even if the trial court abused its discretion in considering Father’s conduct
abuse, it was free to consider the Children’s reactions to his angry outbursts
under the catch-all provision of section 5328(a)(16).
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relationship with the Children. See id. at 39-40, 58. Father asserts that
Mother turned the Children against him by overprotecting them and by
discouraging them from having a relationship with him. See id. at 39-40, 58.
The trial court responds to these issues as follows:
[As to factor 1, t]his [c]ourt did not find that Mother has
failed to support Father’s contact with the [C]hildren; rather this
Court found that “over time, Mother has shown more willingness
than Father” to refrain from poisoning the [C]hildren’s
relationship with Father. Further, this Court found that Mother
was credible in her “willingness and her effort to create a more
harmonious family relationship,” and that to the contrary, a
similar finding could not be made about Father. . .. Father is
simply wrong in his representation of the findings.
Second, the [c]ourt’s findings are based on ample and
competent evidence. Father testified that he filed a motion
because Mother was not encouraging contact between him and
the [C]hildren, but then he gave many examples of times when
Mother did try to arrange interactions, even during periods of high
tension. . .. Mother herself testified credibly that she did try to
reinforce to the [C]hildren that their Father loves them and
believes that improved relations would benefit the whole family.
Trial Court Opinion, 9/28/21, at 20-21.
Concerning factor 8, the trial court found that Mother attempted to
encourage a better relationship with Father and demonstrated “some
willingness to curb the Children’s rejecting behavior.” Id. at 29. The court
noted that “Mother made her mistakes, such as occasionally correcting Father
in front of the [C]hildren, but overall, Mother took some affirmative steps to
avoid poisoning the [C]hildren’s views of their Father.” Id. The court
specifically noted that Mother did not tell the Children about Father’s arrest
for driving under the influence of alcohol, and “has not made a habit of telling
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the [C]hildren when Father writes disparaging messages about them, such as
calling them bitchy.” Id. Regarding factor 13, the trial court further noted
that the level of conflict between Father and Mother remained high, but that
Father’s “role in the conflict is too frequently aggressive to leave room for
cooperation” between the parents. See id. at 31.
Turning to Father’s claim of parental alienation, the trial court explained:
Dr. Bernstein did indicate that Mother is a contributor to
some of the difficulties, even by asking the [C]hildren to discuss
their feelings she becomes viewed as a favorite parent. However,
he also testified that her own parenting behaviors do not signify
parental alienation, that this is not a case in which parental
alienation is the core of the problem in the family dynamic and
that the [C]hildren view Mother as calmer and more predictable
because she is the calmer and more predictable parent.
This [c]ourt credited Dr. Bernstein’s testimony . . .. The
unmistakable gravamen of that testimony does not support
Father’s claim. In other words, Dr. Bernstein did not view Mother
as engaged in substantial parental alienation.
Id. at 40. The court proceeded to note that Father viewed Mother as the
cause of all of the family’s difficulties and attributed the Children’s reactions
to him as parental alienation. See id. at 35.
Following our review, we discern no abuse of discretion in the trial
court’s findings and reasoning. The court recognized the complex family
dynamics in this case. Dr. Bernstein’s and the Children’s testimony supported
the court’s decision to favor Mother when deciding which party was more likely
to encourage contact and less likely to attempt to turn the Children against
the other party. See N.T., 6/10/20, at 88-89; N.T., 7/28/20, at 1546, 1565-
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66. Further, the trial court balanced the level of conflict between Mother and
Father and its determination that Father’s approach undermined the parents’
ability to cooperate. Lastly, the trial court carefully considered the evidence
regarding parental alienation, and it was entitled to credit Dr. Bernstein’s
opinions when finding that Mother did not engage in parental alienation and
rejecting Father’s claim that parental alienation was at the core of the family
dynamics. Thus, Father’s claims as to factors 1, 8, and 13 merit no relief.
Next, in his ninth issue, Father asserts that the trial court abused its
discretion in weighing factor 12 (availability to care for the child or make child-
care arrangements) in favor of Mother. Father contends that he was able to
make appropriate child-care arrangements as recognized by the trial court,
but that the court incorrectly focused on Mother’s ability to personally care for
the Children. Father’s Brief at 59. We discern no abuse of discretion in the
trial court’s decision to weigh this factor in favor of Mother, who is a stay-at-
home parent. See Trial Court Opinion, 9/28/21, at 31. Therefore, this issue
warrants no further discussion.
In his tenth issue, Father claims that the trial court abused its discretion
when finding that he and the Children never had a strong bond. Father asserts
that his exhibits showed “the great relationship that he had with his daughters
prior to separation.” Father’s Brief at 75. Father contends that the evidence
of his bonding with the Children was relevant to the trial court’s consideration
of factors 3 (parental duties performed by each party), 4 (need for stability
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and continuity), 9 (party is more likely to maintain relationship with the child),
10 (party is likely to attend to the needs of the child). See id. at 79 n.19.
The trial court, when entering its findings of fact into the record, stated
that Father “never had a strong and sturdy bond with the [C]hildren as he
devoted much of his time during the marriage to his work.” See N.T.,
5/21/21, at 5. In its Rule 1925(a) opinion, the trial court further explained
that “there was clearly a relationship” between Father and the Children, but
“Father did not have a strong bond with the [C]hildren prior to the separation
because he was not often home, and the relationships were strained before
the separation.” Trial Court Opinion, 9/28/21, at 37. The trial court credited
Dr. Bernstein’s testimony that Father did not have a significant parent
caretaking level of responsibility, which, in turn, impacted on the strength of
his bond with the Children. Id. (citing N.T., 6/20/20, at 182). Notably, the
court found that Father was unable to preserve or build upon his relationship
after the parties separated. Id.
As we find support in the record for the trial court’s conclusion that
Father and the Children had a relationship, but that their relationship had
soured to the point discussed at the custody trial, we find no abuse of
discretion in the trial court’s consideration of Father’s bond with the Children.
Next, in his eleventh issue, Father argues that the trial court erred in
awarding Mother sole legal custody. See Father’s Brief at 23-31. When
deciding the form of custody, including sole legal and physical custody, section
5328 directs the trial court to consider all of the sixteen factors to determine
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the best interest of the child. 23 Pa.C.S.A. §§ 5323(a) (defining forms of
custody), 5328(a) (enumerating the sixteen factors); see also S.W.D. v.
S.A.R., 96 A.3d 396, 401-02 (Pa. Super. 2014) (enumerating the factors and
requiring that a court consider all factors).
Father, relying on cases decided prior to the passage of the Act, argues
that there was evidence that he and Mother “are capable of exhibiting the
minimal degree of cooperation necessary for a shared legal custody
arrangement.” Father’s Brief at 25-30.
The trial court here examined the behaviors of the parties and noted
Father’s failure to promptly respond to Mother, as well as his hostility toward
Mother. See Trial Court Opinion, 9/28/21, at 32-33. The trial court
specifically concluded that Father’s level of hostility and the parties’ level of
conflict impairs their ability to cooperate. See N.T., 5/21/21, at 14 (“The level
of conflict in this case is high . . . and impairs both parties’ ability to cooperate.
. . . Father’s role in the conflict too frequently takes form of aggression,
primarily verbal. . ..”); see also Trial Court Opinion, 9/28/21, at 32-33 (“In
light of the respective conduct of the parties, this [c]ourt concluded that sole
legal custody was appropriate because of the inability of the parties to avoid
hostilities resulting from efforts to work together.”). The trial court also noted
that Father’s hostility to Mother overshadowed his care for the Children at
times. See id. at 32 (noting that Father responded to serious news about
G.R. by asking, “Is there any good news ever about our [] daughters? Your
continual diary of their sadness and failings is quite depressing.”).
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Here, while the record shows some indication that the parents could
cooperate, Father’s own testimony also confirmed his frustration with Mother;
his own use of sarcasm when dealing with her; and his growing frustration
over the entire family dynamic, including the Children. See N.T., 7/8/20, at
655-58 (noting that while Father initially agreed to G.R.’s participation in
extracurricular program, he later stated he “may object” with a “lot of
sarcasm,” because he was annoyed with Mother’s repeated questions). On
other occasions, he was expressly hostile towards Mother. See id. at 759-60
(replying to a message regarding K.R.’s therapy, “I hate you. You revel in our
daughters’ ailments. There’s a place reserved for you in hell. You’re sick, and
you need to be in therapy”); see also id. at 790 (responding “FU” to Mother);
see also id. at 894-95 (referring to Mother as “a super bitch” and the Children
as “bitchy”). Hence, the record supports the trial court’s findings that Father’s
hostility to Mother impaired the parties’ ability to cooperate. Given the best-
interests analysis conducted by the trial court pursuant to section 5328(a), we
do not disturb the award of sole legal custody.
In his next two issues, twelve and thirteen, Father challenges the trial
court’s award of sole physical custody to Mother.10 See Father’s Brief at 31-
36. As noted above, we review the trial court’s determination on the form of
____________________________________________
10 Father addressed these issues, both dealing with the physical custody
award, together in his brief and we, likewise, address them together, since
they are interrelated.
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custody in light of the child’s best interest findings pursuant to section
5328(a).
Father asserts that the record lacks evidence of abuse or addiction. See
id. at 32. Further, while he acknowledges he has a temper, Father contends
the record fails to support that he has a severe mental or moral deficiency
representing a threat to the Children’s welfare. See id. at 33. As a result,
Father argues that the court failed to protect his parental rights and his right
to maintain a relationship with the Children, essentially terminating his
parental rights. See id. at 33, 35-36.
In support of its award of sole physical custody, the trial court declined
to force a relationship between Father and the Children. Trial Court Opinion,
9/28/21, at 33. Relying on testimony from Dr. Bernstein, the court stated,
“This [c]ourt finds that forcing the relationship at this point—without real
evidence of progress, especially on Father’s part—poses a grave emotional
threat to the [C]hildren’s welfare.” Id. The court further noted the family’s
exhaustion with therapy and likelihood that it will fail to result in progress.
Id. at 36.
Following our review, we conclude the trial court analyzed and
addressed each factor as required by section 5328(a) in determining sole
physical custody. See 23 Pa.C.S.A. § 5328(a); see also E.D., 33 A.3d at 79-
80 n.2; J.R.M., 33 A.3d at 652. We emphasize the amount of weight that a
trial court gives to any one factor is almost entirely within its discretion. See
M.J.M., 63 A.3d at 339. We add that the trial court’s findings concerning the
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family’s exhaustion with therapy was supported by the Children’s testimony
at the custody trial. Additionally, as noted by the trial court, Dr. Bernstein
concluded that forcing contacts or relationships between the Children and
Father was tantamount to creating more distress for the Children. See N.T.,
6/10/20 at 180-81. Father is thus due no relief.
Father’s fourteenth issue challenges the trial court’s decision to reject
his request for additional reunification therapy. Father’s Brief at 79-80. For
background, at the custody trial, Father and Mother presented witnesses for
additional therapeutic interventions for the family. Father presented
testimony from Linda Gottlieb (“Ms. Gottlieb”), who discussed the Building
Bridges for Families Program. Ms. Gottlieb’s practice focused on parental
alienation. She recommended the Children undergo treatment, which
preferably, would take place while cutting the Children off from the alienating
parent (i.e., Mother) for ninety days. The trial court, as noted above, selected
Mother’s proposed provider, Dr. Zitner, to provide therapeutic interventions
for the family when it entered the July 31, 2020 interim custody order.
However, after Dr. Zitner’s therapy did not succeed and Mother sought a final
custody order, Father requested additional therapeutic interventions based on
his previous proposal.
Father argues that Ms. Gottlieb has a high success rate and that her
reunification therapy has been accepted by this Court. Father’s Brief at 82-
83. Father attacks the trial court for “coddling” the Children and rejecting
further interventions based on “fatigue.” Id. at 80.
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The trial court, in its Rule 1925(a) opinion, explained its decision not to
order further therapeutic interventions, reasoning that “this family is
exhausted with therapy, and they have undergone a significant amount of
counseling, which did not overall result in significant improvements.” Trial
Court Opinion, 9/28/21, at 38. The court continued:
Father’s proposed therapist was a social worker with a long
history of working with cases of parental alienation. This [c]ourt
did not find parental alienation in this case. Consequently, the
[c]ourt found that this brand of therapy would impose upon the
family an inapplicable framework that would frustrate the
therapeutic work of the participants examining their own behavior
and their group dynamics.
Id. at 38-39.
The record supports the trial court’s decision not to compel further
therapeutic interventions for the family. As to Father’s proposed therapeutic
intervention, Dr. Bernstein explained that the Children already blamed Father
for their “upset and family dysfunction.” Id. at 191. Therefore, according to
Dr. Bernstein, placing them away from Mother in a program for the purpose
of rebuilding or reconnecting with Father “could result in further trauma and/or
distress for the [Children].” Id. Furthermore, the record confirms the trial
court’s findings that after their unsuccessful attempts at therapy with Ms.
Gibson and Dr. Zitner, the Children were exhausted, and that further court-
ordered interventions were not in their best interests. Thus, no relief is due.
In his fifteenth issue, Father challenges the trial court’s decision to
overrule his request to present rebuttal evidence. This Court reviews the trial
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court’s evidentiary ruling for an abuse of discretion. K.T. v. L.S., 118 A.3d
1136, 1165 (Pa. Super. 2015).
Generally[,] the admission of rebuttal evidence is a matter
within the sound discretion of the trial court. Rebuttal evidence is
proper where it is offered to discredit testimony of an opponent’s
witness. [W]here the evidence goes to the impeachment of his
opponent’s witness, it is admissible as a matter of right.
Furthermore, in order to constitute proper impeachment evidence,
the rebuttal witness’ version of the facts must differ from that of
the witness being impeached.
American Future Systems, Inc. v. BBB, 872 A.2d 1202, 1213 (Pa. Super.
2005) (internal citation and quotations omitted).
Father argues Ms. Gibson, the family counselor/mediator who worked
with the family before the custody trial, would have been able to resolve
conflicts in testimony and address several of relevant custody factors and
testify that Father did not have angry outbursts. Father’s Brief at 85-89. As
to his testimony on rebuttal, Father argues that he had not testified since the
second day of trial and, specifically, could have offered rebuttal testimony as
to the proposed reunification therapy programs offered by each of the parties.
Id. at 89.
Initially, we agree with the trial court that Father waived his claim that
the trial court abused its discretion by failing to object at the custody trial and
agreeing not to call his rebuttal witnesses. See N.T., 7/31/20, at 1639; see
also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal”). In any event, we also agree
with the trial court that this claim lacks merit. Further, Father proffered Ms.
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Gibson to testify regarding custody factors, he should have done so in his
case-in-chief. To the extent Father proffered his own testimony regarding the
treatment alternatives offered at the custody trial, his testimony would have
been cumulative. Accordingly, no relief is due.
In his sixteenth issue, Father challenges the trial court’s decision to
enter an interim custody order following trial and then enter a final order
without further testimony or evidence. See Father’s Brief at 90. Pennsylvania
Rule of Civil Procedure 1915.4 provides in part as to prompt decisions:
The judge’s decision shall be entered and filed within 15 days of
the date upon which the trial is concluded unless, within that time,
the court extends the date for such decision by order entered of
record showing good cause for the extension. In no event shall
an extension delay the entry of the court’s decision more than 45
days after the conclusion of trial.
Pa.R.Civ.P. 1915.4(d).
Father argues that the court did not issue a final order until two hundred
ninety-four days after the conclusion of trial in contravention to Pa.R.Civ.P.
1915.4(d). Father’s Brief at 90. He asserts that he experienced prejudice as
he was required to wait for eight months to appeal a final order. Id. at 91.
Father contends that he suffered prejudice because he was “forced to
languish” to appeal the terms of the interim custody order, which he disagreed
with, and proved unsuccessful. Id.
The trial court explained its decision to enter the interim custody order
as follows:
[T]his [c]ourt explained and stands by the conclusion that
this was not an ordinary situation, and that given the serious
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issues in the family and the problems demonstrated by [G.R.],
extra measures were warranted. In entertaining questions from
the parties at the conclusion of trial and the time of the making of
the [interim custody o]rder, Father only raised a concern about
how to share the costs of therapy. In any event, it is difficult to
see any prejudice to Father from the interim order. . .. During
the period of the interim order, his legal custody was greater, as
was his time with the [C]hildren. Consequently, this argument is
without merit, and the measure taken by the [c]ourt without
harm.
Trial Court Opinion, 9/28/21, at 48-49 (citations omitted).
The record here shows that Father failed to raise any prior objection as
to the issuance of an interim custody order and/or timing of the issuance of a
final order. Rather, the record reveals that Father acquiesced and only made
inquiry with respect to the cost of the therapeutic intervention with Dr. Zitner.
N.T., 7/31/20, at 1694. Father, therefore, waived this issue by failing to raise
it in the court below as the matter proceeded. See Pa.R.A.P. 302(a); Fillmore
v. Hill, 665 A.2d 514, 515-16 (Pa. Super. 1995); see also Bednarek v.
Velazquez, 830 A.2d 1267, 1270 (Pa. Super. 2003). Further, Father had the
opportunity to file a petition for modification after the entry of the interim
custody order or otherwise bring the issue of custody before the court for
consideration, but he did not so do.
In any event, following our review of this appeal, we agree with the trial
court that the interim custody order served a beneficial purpose under the
circumstances of this case. The court, as the parties acknowledged at the
time of the hearing, was attempting to heal the Children’s relationship with
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Father through additional therapeutic interventions. As such, this claim merits
no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2022
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