J.S.B. Appellant S.C.B. Appellant
J.S.B. S.C.B. Appellant
from the Order Entered April 5, 2018 In the Court of Common
Pleas of Cumberland County Civil Division at No:
from the Order Entered September 12, 2018 In the Court of
Common Pleas of Cumberland County Civil Division at No:
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
("Mother") and J.S.B. ("Father")
cross-appeal from the order entered April 5, 2018, in the
Court of Common Pleas of Cumberland County, awarding both
parties shared legal custody, awarding Mother primary
physical custody, and awarding Father partial physical
custody, with respect to their son, I.W.B.
("Child"), born in August 2014. Mother also appeals
from the order entered September 12, 2018, directing her to
pay $500 in fees to Child's guardian ad litem
("GAL"), Samuel Andes, Esquire. After review, we
vacate the orders and remand for further proceedings.
matter has a lengthy and tortuous procedural history. It
began on February 11, 2016, when Mother filed a complaint
requesting shared legal and primary physical custody of
Child. The case culminated in a final custody order entered
August 3, 2016, which awarded the parties shared legal
custody and awarded Mother primary physical custody. The
order awarded Father partial physical custody during the
first, third, and, if available, fifth weekend of each month
from Saturday at 9:00 a.m. until Sunday at 4:00 p.m., and
during each Wednesday from 4:00 p.m. until 7:00 p.m. Father
did not appeal but filed a motion for reconsideration on
September 2, 2016.
November 7, 2016, the trial court entered an order modifying
the August 3, 2016 custody order slightly. Once again, Father
did not appeal the order but filed a motion for
reconsideration on December 2, 2016. Then, on March 16, 2017,
the court entered an order purportedly addressing both of
Father's motions for reconsideration and modifying the
order of November 7, 2016. Mother appealed, and a prior panel
of this Court vacated the order on October 2, 2017. We held
that the court lacked authority to act on Father's
motions because it did not grant reconsideration expressly
within the thirty-day appeal period following the entry of
each order. See S.C.B. v. J.S.B., 179 A.3d 532 (Pa.
Super. 2017) (unpublished judgment order).
Mother filed a petition for special relief on March 3, 2017,
in which she requested, among other things, that the trial
court order the parties to participate in a custody
evaluation. The court entered an order on April 18, 2017,
stating it would defer its decision on Mother's request
for a custody evaluation until it received and reviewed a
report from the GAL. On June 16, 2017, Father filed a motion
requesting that the court deny Mother's petition. The
court denied Father's motion on June 20, 2017, stating
that its order of April 18, 2017, remained in
October 4, 2017, Father filed a petition for modification of
custody, requesting shared legal and primary physical custody
of Child. Mother filed a motion on November 2, 2017,
requesting that the trial court conduct a hearing on her
petition for a custody evaluation. On December 21, 2017, the
court entered an interim order modifying the parties'
custody award pursuant to the GAL's recommendation.
Specifically, the order awarded Father partial physical
custody on an alternating two-week schedule. The order
awarded custody from the end of Father's workday on
Friday until the start of his workday on Monday during the
first week. The order awarded custody from the end of
Father's workday on Wednesday until the start of his
workday on Friday during the second week. In the order, the
court also declined to delay the matter further in order to
obtain a custody evaluation. Mother filed a notice of appeal
from the interim order but later withdrew her appeal.
trial court conducted a hearing on the merits of the
parties' custody case on March 8, 2018. The parties
presented evidence addressing a variety of subjects. Most
notably, the evidence focused on Father's complaint that
the maternal grandparents babysit Child while Mother works,
Mother's claim that Child suffers an excessive number of
injuries while in Father's care, and Mother's
contention that the parties should undergo a custody
evaluation in order to investigate the injuries.
respect to Child's maternal grandparents, the record
reveals that Mother has an unconventional work schedule and
often works at night. Mother testified that eighty or ninety
percent of the time she works some type of late shift, such
as the 3:00 p.m. to 11:00 p.m. shift, or the 10:40 p.m. to
6:40 a.m. shift. N.T., 3/8/18, at 157. Accordingly, she
relies on Child's maternal grandparents to babysit Child
while she is at work. She stressed that Child is often asleep
while she is working and that she prefers to work late shifts
so she can spend as much time as possible with him during his
waking hours. Id. at 152-54. In response, Father
suggested that Child should be in his care while Mother is at
work, explaining that he usually works from 6:30 a.m. until
3:30 p.m., and is available during the afternoons.
Id. at 12, 18-21.
Mother's claim that Child suffers an excessive number of
injuries, she testified that he becomes hurt far more
frequently while in Father's care than in her care, and
that Father exhibits a "callous reaction" whenever
she brings Child's injuries to his attention.
Id. at 130. Mother referenced, for example, an
incident during which Child injured his knee and had
difficulty walking, and an incident during which he reported
that his head hurt, saying, "dad hit me[.]"
Id. at 133-35. In an effort to refute Mother's
claims, Father presented the testimony of his friends, S.K.
and M.P., who stated that Father does not pose a safety risk
to Child. Id. at 195-96, 202.
concerning Mother's request for a custody evaluation, the
trial court heard the testimony of the parties' former
co-parenting counselor, Ashley Milspaw, Psy.D., who
recommended that a custody evaluation would be beneficial to
help determine whether Mother is trying to alienate Child
from Father, or whether she has "some justified concerns
regarding the child's safety." Id. at 97.
Father questioned the need for an evaluation, describing
Mother's request as a "delay tactic."
Id. at 82. He stated that he would be willing to
undergo an evaluation if Mother paid for it. Id. at
28-29. He also accused Mother of trying to manipulate the
outcome of the evaluation by contacting potential evaluators
in advance and insisting that the evaluator should know she
is the one providing the funds. Id. at 25-26, 77-78.
This would be contrary to the GAL's proposal that Mother
place the funds in escrow and that the GAL provide the funds
to the evaluator. See id. at 217-18 (the GAL
discussing the proposal). Mother denied these allegations,
stating that she contacted only one potential evaluator in
advance, before she knew the evaluator would become involved
in the case, and did so because she "was not comfortable
with the fact that thinking that [sic] a
psychologist would violate their ethics . . . . so I called .
. . to see if in fact anyone had ever escrowed money and then
paid so that it was not known where the funds came from. And
she said she had never done that in her experience."
Id. at 118-29.
the hearing, on March 16, 2018, Mother filed motions to
compel preschool attendance and for designation of child
counselor/play therapist. In her motions, Mother requested
that the trial court enter an order directing that Child
attend a specific preschool to which Father objected, and an
order designating one of three enumerated mental health
professionals to address any potential behavioral issues or
concerns relating to Child.
March 22, 2018, the trial court entered an interim order
awarding Father partial physical custody of Child every other
weekend from 4:00 p.m. on Friday until 7:00 p.m. on Sunday,
every Tuesday from 4:00 p.m. to 7:00 p.m., and every week
from Thursday at 4:00 p.m. until "the exchange Friday
morning with Grandparents, at the location Grandparents
choose." Interim Order of Court, 3/22/18, at 1. On April
5, 2018, the court entered an order indicating that it
intended to render the March 22, 2018 interim order final. In
an opinion accompanying the order, the court conducted an
analysis of some, but not all, of the custody best interest
factors listed at 23 Pa.C.S.A. § 5328(a). Specifically,
the court addressed 23 Pa.C.S.A. § 5328(a)(1), (2), (3),
(4), (11), (12), (13), and (16), but failed to address 23
Pa.C.S.A. § 5328(a)(2.1), (5), (6), (7), (8), (9), (10),
(14), or (15). The court stated that it was incorporating by
reference its prior analysis of the factors from its order of
August 3, 2016. Trial Court Opinion, 4/5/18, at 4. The court
also noted its finding in August 2016 that Father should
receive increased custody of Child "as his parenting
skills develop" but that Mother has "the far more
developed infrastructure that . . . is in the best interest
of the child." Id. On April 30, 2018, the court
entered an order granting Mother's motions to compel
preschool attendance and for designation of child
counselor/play therapist. Both Mother and Father filed
notices of appeal from the April 5, 2018 order on May 4,
2018, along with concise statements of errors complained of
on appeal, and motions for reconsideration.
the GAL filed a motion for payment of fees on September 4,
2018. In his motion, the GAL averred that Mother had failed
to pay her half of his fees, as directed by the trial
court's order appointing him as Child's GAL. The
court entered an order on September 12, 2018, directing
Mother to pay the GAL within ten days. Mother, acting pro
se, timely filed a notice of appeal from the September
12, 2018 order on October 11, 2018, along with a concise
statement of errors complained of on appeal., 
raises the following claims for our review regarding the
April 5, 2018 order at Superior Court docket number 763 MDA
1.Did the [trial] court err in its final custody order when
it failed to consider factors 5, 8, 9, 10, 14 and 15?
2.Did the [trial] court err by not giving weighted
consideration to factors relative to the safety of Child,
insofar as Mother testified that Father has on multiple
occasions returned  Child with injuries?
3. Did the [trial] court err by relying on a standard custom
and practice in fashioning its custody order?
4. Did the [trial] court err by denying Mother's request
for a custody evaluation despite the fact that there was
uncontroverted expert testimony that such an evaluation was
necessary, and where Father claimed to have agreed to one
Mother's Brief (763 MDA 2018) at 4 (suggested answers
adds two more claims at Superior Court docket number 1168 MDA
2018, regarding the September 12, 2018 order:
I. Did the [trial] court violate [Mother's] due process
rights when it ordered her to pay $500 to Mr. Andes, the
[GAL], without taking evidence, argument, or trial?
II. Did the [trial] court commit an error of law and/or
abuse its discretion when it ordered [Mother] to pay $500
to Mr. Andes without taking evidence, argument, or trial,
especially since the Superior Court vacated the Order
requiring her to pay $1, 500 in his fees and when Mr. Andes
owes [Mother] a reimbursement?
Brief (1168 MDA 2018) at 4 (suggested answers omitted). In
addition, Father raises the following claims at Superior
Court docket number 758 MDA 2018:
A. Did [the] trial court err by granting [the] maternal
grandparents custody of the minor child when the maternal
grandparents are not a party to the case and when that
custodial time supersedes [Father's] custodial rights to
the minor child when [Mother] is working and when [Father] is
available to care for the minor child?
B.Did the trial court err in admitting photographic evidence
over [Father's] objection when there was no testimony
specifically pertaining to the photographs, the photographs
were not provided in advance[, ] there was no opportunity to
review the photographs and when there was no opportunity to
cross examine [Mother] regarding her allegations concerning
Brief at 2 (underlining and suggested answers omitted).
begin by addressing whether we possess jurisdiction to review
the trial court's orders. "'[S]ince we lack
jurisdiction over an unappealable order it is incumbent on us
to determine, sua sponte when necessary, whether the
appeal is taken from an appealable order.'" Gunn
v. Automobile Ins. Co. of Hartford, Connecticut, 971