Singh, S. v. Sahlah, O.
CourtSuperior Court of Pennsylvania
Date FiledNovember 9, 2026
Docket1078 EDA 2026
JudgeMcLaughlin
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SHANTEL SINGH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
OMAR EL SAHLAH : No. 1078 EDA 2026
Appeal from the Order Entered March 12, 2026
In the Court of Common Pleas of Monroe County Civil Division at No(s):
002921-CV-2024
BEFORE: McLAUGHLIN, J., KING, J., and BECK, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 9, 2026
Shantel Singh (“Mother”) appeals pro se from the final custody order
awarding Omar El Sahlah (“Father”) partial physical custody of their three
minor children (born in 2021, 2022, and 2023). Mother argues, inter alia, the
court violated her right to procedural due process, failed to adequately
consider the proper statutory factors, and failed to explain its reasoning. We
affirm.
Mother filed a custody complaint in March 2024, seeking to formalize
her primary physical custody of the children. At that time, the children had
been living with Mother and visiting Father for a few hours, a few times a
week.
Following a conciliation conference in July 2024, the conciliator
recommended the parties share legal custody, and that Mother be awarded
primary physical custody. The conciliator recommended Father exercise
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partial physical custody during the day on alternating weekends, and on
Monday evenings. The conciliator’s recommendation was adopted by the court
as an interim custody order, and a review conference was scheduled for
October 2024. Following the October conference, the conciliator entered a
substantially similar recommendation, adding overnight custody for Father on
Father’s weekends. The recommendation was adopted by the court as an
interim custody order.1
The following year, in March 2025, Mother filed a petition for
modification of custody. She alleged that Father had relocated to California
and had stopped exercising the periods of partial custody allowed to him under
the interim order. Mother requested the order be modified to remove Father’s
then-existing custody periods “and instead provide for periods of custody upon
request to be exercised in Pennsylvania.” Petition for Modification, March 5,
2025, at ¶ 8.
A conciliation conference was held in May 2025.2 The conciliator
recommended that Father have partial physical custody, to be exercised in
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1 To the extent that Mother’s petition for primary custody should have been
heard by a judge, see McGee v. McDowell, 333 A.3d 383, 390 (Pa.Super.
2025), neither party has raised that issue. Moreover, any irregularity has been
waived by the parties’ failure to appeal from the orders resulting from the
conciliation conferences.
2 As opposed to actions for primary custody, an action for partial custody may
be heard by a conciliator or conference officer. See Pa.R.Civ.P. 1915.1
(providing a conciliator is the equivalent of a conference officer); 1915.4-1,
1915.4-2, and 1915.4-3 (providing for the appointment of a conference officer
to hear actions for partial custody).
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California on eight consecutive weeks during the summer, and in Pennsylvania
on one weekend per month. The recommendation was adopted as an interim
order of the court, and an evidentiary hearing was scheduled to be held before
a Custody Hearing Officer the next month. 3
Following the hearing, the Custody Hearing Officer issued a Proposed
Order and Recommendation. The Officer considered the custody factors of 23
Pa.C.S.A. § 5328(a) (eff. Aug. 13, 2024, to Aug. 28, 2025).4 See Proposed
Order, June 24, 2025, at 3-15. The Officer recommended the parties share
legal custody of the children, and that Mother maintain primary physical
custody. The Officer also recommended Father have partial physical custody
in California for six weeks during the summer, in two three-week periods,
____________________________________________
3 Mother’s counsel withdrew after the May 2025 conciliation conference.
Mother retained new counsel prior to the June 2025 evidentiary hearing before
the Custody Hearing Officer. See Docket at Nos. 46, 69. In the interim, she
filed several pro se motions, which were denied.
4 Amendments to Section 5328(a) took effect on August 29, 2025, after the
evidentiary hearing held by the Custody Hearing Officer but before the trial
court’s entry of a final order. See 23 Pa.C.S.A. § 5328(a) (eff. Aug. 29, 2025).
Mother has not argued the court should have considered the changes to the
statute, or that any of the amendments rendered the final order an abuse of
discretion. We will therefore consider the Section 5328(a) factors as they
existed prior to the August 2025 amendments as controlling for the purposes
of this case. See Robbins v. Robbins, No. 1746 MDA 2025, 2026 WL
2654870, at *5 n.4 (Pa.Super. filed Sept. 9, 2026) (unpublished mem.)
(finding appellant waived issue of whether trial court had applied correct
version of Section 5328(a)); Garnand v. Garnand, No. 185 MDA 2026, 2026
WL 2186269, at *7 (Pa.Super. filed July 29, 2026) (unpublished mem.)
(same); cf. Curtis v. Curtis, ---A.3d ----, 2026 WL 1982961 (Pa.Super. filed
July 7, 2026) (remanding where court applied expired version of Section
5328(a), and appellant argued the misapplication affected the court’s custody
award).
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separated by a minimum of two weeks, and one optional weekend per month,
to be exercised in Pennsylvania, with notice to Mother. The Officer further
recommended that the Children have a nightly one-hour phone call with the
non-custodial parent.
Mother filed timely exceptions in July 2025. Both parties filed briefs, and
the trial court held argument in February 2026. It denied Mother’s exceptions
and adopted the Custody Hearing Officer’s Proposed Order and
Recommendation as a final custody order. See Order, March 12, 2026, at 1.5
Mother filed a pro se notice of appeal.6 Mother raises the following
issues:
I. Whether the trial court committed an error of law by concluding
that Father’s voluntary interstate relocation from Pennsylvania to
California did not require application of the relocation provisions
of 23 Pa.C.S. § 5337, where the resulting custody order
fundamentally restructured the parties’ existing custody
arrangement and required the children to reside in California
during recurring extended periods of physical custody[.]
II. Whether the trial court abused its discretion or committed an
error of law by failing to properly apply the statutory best-interest
factors set forth in 23 Pa.C.S. § 5328(a), and by entering a
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5 In September 2025, while Mother’s exceptions were pending, she filed a
Petition for Special Relief. The Petition raised safety concerns, and requested
the court terminate Father’s exercise of custody in California. The February
2026 argument before the trial court on Mother’s exceptions also addressed
Mother’s Petition for Special Relief. The court granted the Petition in part and
ordered Father’s partner to undergo various background checks before further
contact with the children. The court denied Mother’s request to terminate
Father’s exercise of partial custody in California. Mother has not appealed this
decision.
6 Mother’s counsel subsequently withdrew from representation.
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physical custody schedule that was not adequately reconciled with
its own findings concerning Mother’s role as the children’s primary
caregiver and source of stability, continuity, and daily care[.]
III. Whether the trial court abused its discretion by authorizing
recurring extended interstate travel and multi-week separations
for very young children without adequately explaining how their
developmental needs, emotional well-being, continuity of care,
and established routines were considered under 23 Pa.C.S. §
5328(a)(10).
IV. Whether the trial court erred as a matter of law by concluding
that it had satisfied its independent judicial responsibility under
Pa.R.C.P. 1915.4-2 despite disposing of several preserved legal
challenges without fully addressing their substantive merits.
V. Whether the trial court abused its discretion by finding that
Mother attempted to alienate the children from Father under 23
Pa.C.S. § 5328(a)(8), where the finding was not supported by
competent evidence demonstrating conduct sufficient to support
that statutory factor.
VI. Whether the trial court abused its discretion by authorizing
extended interstate physical custody where the evidentiary record
concerning third-party supervision, household composition, and
proposed caregiving arrangements was insufficient to support the
custody determination.
VII. Whether the trial court committed an error of law by
concluding that Mother’s preserved procedural due process claim
became moot solely because a subsequent evidentiary hearing
occurred, without determining whether that hearing actually cured
the alleged constitutional deficiencies associated with the
proceedings that produced the operative interim custody order.
VIII. Whether the trial court erred by entering a final interstate
custody order where the particular interstate custody
arrangement ultimately awarded was not fairly framed by the
pleadings or otherwise clearly placed at issue before the
evidentiary hearing.
IX. Whether the written custody decisions contain material factual
statements that are difficult to reconcile with the certified record
and that bear directly upon the statutory custody analysis
supporting the Final Custody Order.
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Mother’s Br. at 9-11 (format altered, suggested answers omitted).
“In reviewing a custody order, our scope is of the broadest type and our
standard is abuse of discretion.” K.B. v. M.F., 247 A.3d 1146, 1150 (Pa.Super.
2021) (citation omitted). “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.” Id. (citation omitted).
Where the parties have filed exceptions to the report of a hearing officer
on the issue of partial custody, “the trial court is required to make an
independent review of the record to determine whether the hearing officer’s
findings and recommendations are appropriate.” Id. (citation omitted). “[T]he
hearing officer’s report and recommendations are given the fullest
consideration particularly on the issue of credibility of witnesses, which the
trial court is not empowered to second-guess.” Id. (citation omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” P.J.P. v. M.M., 185 A.3d 413, 417 (Pa.Super. 2018)
(citation omitted). The court must consider the custody factors of Section
5328(a), but it may ascribe the weight to be assigned each factor based on
the facts of the case. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013);
see also A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014) (“The parties
cannot dictate the amount of weight the trial court places on evidence. . . .
Appellate interference is unwarranted if the trial court’s consideration of the
best interest of the child was careful and thorough, and we are unable to find
any abuse of discretion” (citation omitted)).
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In her first issue, Mother contends the court erred in denying the
exception she took based on the Custody Hearing Conference Officer’s failure
to weigh the relocation factors under Section 5337(h). See 23 Pa.C.S.A. §
5337(h). Mother argues the trial court erred in concluding the relocation
factors were irrelevant because it found the primary residence of the children
has not changed. Mother asserts that Father’s relocation met the statutory
definition of Section 5322(a) and required consideration of the relocation
factors because it “required the trial court to abandon the parties’ existing
Pennsylvania parenting schedule and replace it with recurring extended
periods of physical custody in California.” Mother’s Br. at 17. She points out
that prior to Father’s relocation, the interim custody order provided Father
would exercise custody on alternating weekends and Monday nights, and it
was Father’s relocation that rendered this custody schedule unworkable. She
argues the court did not merely adjust the schedule following Father’s
relocation, but “replaced alternating weekend custodial periods exercised in
Pennsylvania with recurring multi-week custodial periods exercised
approximately 2,500 miles away in California[.]” Id. at 21.
Mother argues the Child Custody Act “does not define relocation solely
by reference to a parent’s decision to move,” but “centers upon whether the
proposed custodial arrangement significantly impairs the exercise of custodial
rights.” Id. at 20 (citing C.M.K. v. K.E.M., 45 A.3d 417, 422, 426-27
(Pa.Super. 2012)). She contends that “[t]he relocation statute reflects the
Legislature’s recognition that extended geographic separation presents
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concerns distinct from those addressed by the general custody factors.” Id.
at 21. In her view, it “require[s] courts to evaluate not only the children’s best
interests under § 5328, but also the practical consequences of significant
distance upon the parent-child relationship.” Id.
In denying this exception, the trial court gave the following reasoning.
Mother . . . contends that Hearing Officer failed to analyze the
relocation factors under 23 Pa. C.S. § 5337(h). A relocation is
defined as “a change in a residence of the child which significantly
impairs the ability of a nonrelocating party to exercise custodial
rights.” 23 Pa. C.S.A. § 5322 (emphasis provided). In the case at
hand, the Children have not changed their residence with Mother.
Father moved to California alone, without the Children. Hearing
Officer’s Proposed Order and Recommendation would allow Father
to have partial physical custody of the Children for six (6) weeks
during the summer, to be exercised in two, non-consecutive,
three-week periods. The Children visiting Father for two, three-
week periods during the summer clearly does not amount to a
change in their residence, and therefore, we conclude the Hearing
Officer did not need to consider the relocation factors under 23
Pa. C.S. § 5337(h).
Opinion, March 12, 2026, at 3.
The trial court did not err or abuse its discretion in denying the
exception. The Child Custody Act defines a “[r]elocation” as “[a] change in a
residence of the child which significantly impairs the ability of a nonrelocating
party to exercise custodial rights.” 23 Pa.C.S.A. § 5322(a).
Here, under the previous order, the children were residing with Mother,
who had primary custody, subject to one overnight with Father every other
week and Monday evenings. In response to Mother’s petition for modification,
Father proposed changing the custody order so he could exercise a few longer
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periods of partial custody in California, rather than the shorter, but more
frequent, periods of partial custody in Pennsylvania. In ordering the children
to visit Father for two non-consecutive three-week periods every summer, the
court did not change the “residence” of the Children. Nor did the change in
Father’s partial custody periods significantly impair Mother’s ability to exercise
her right to primary custody, which she enjoys the other 46 weeks of the year,
subject at most to Father’s optional monthly weekend visits. Thus, the change
did not qualify as a “relocation” under the statute. Cf. C.M.K., 45 A.3d at 426
(where the mother had primary custody of the child and father had partial
custody, and mother sought to move to another county with the child, finding
the move constituted a relocation because it “significantly impairs [the
f]ather’s ability to exercise his custodial rights” in that it “break[s] the
continuity and frequency of [the f]ather’s involvement with [the c]hild”).
Where a change in custody is not necessitated by the relocation of either
parent under the statutory definition, a court must nevertheless consider the
relocation factors when it shifts custody from one parent to another and this
change requires the children “to move to a significantly distant location.” D.K.
v. S.P.K., 102 A.3d 467, 468, 477 (Pa.Super. 2014). Under the facts of the
instant case, however, custody has not shifted to Father, 7 and the children
____________________________________________
7 Father’s six weeks of custody time in California constitute less than the
amount of time he had been allowed in Pennsylvania under the preceding
interim order (i.e., every other weekend and Monday evenings). Only if Father
also frequently visits Pennsylvania under the terms of the new order will he
exceed his previous allowance of custodial time.
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have not moved. Cf. id. (where the mother, who had already been exercising
partial custody in a different state, filed a petition for primary custody, finding
there was no “relocation” under the statutory definition, but holding court was
nonetheless required to consider the relocation factors); accord L.J.G. v.
E.B., No. 1261 MDA 2022, 2023 WL 4044173, at *3-5 (Pa.Super. filed June
16, 2023) (unpublished mem.) (where the parties had shared custody of the
child and the father, who lived in Florida, was granted primary custody for
nine months of the year, holding court should have assessed the relocation
factors). Furthermore, Mother has not identified any relocation factor that the
court ostensibly failed to consider that would render its custody decision an
abuse of discretion.
We will discuss Mother’s second and third issues together. In her second
issue, Mother argues that while the court’s opinion denying her exceptions
recognizes her “central role in the children’s daily lives” and “made numerous
findings favorable to Mother” — particularly under custody factors 3, 4, and
10 — it does not adequately explain how these findings support the Custody
Hearing Officer’s decision to award Father weeks of custodial time in
California. Mother’s Br. at 24, 25. Mother argues this violates Section 5323(d),
which requires a court to delineate its reasoning for a custody order. See 23
Pa.C.S.A. § 5323(d). Mother contends that, as a result, this Court is “left to
infer how the trial court reconciled its findings regarding Mother’s primary
caregiving role, the children’s established stability in Pennsylvania, and
Father’s relocation with the recurring six-week interstate custody schedule
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ultimately imposed.” Mother’s Br. at 26. She stresses that “[m]eaningful
appellate review cannot rest upon inference.” Id. at 27.
Similarly, in her third issue, Mother argues the court failed to explain
how the tenth custody factor — addressing “[w]hich party is more likely to
attend to the daily physical, emotional, developmental, educational and
special needs of the child” — supports the Custody Hearing Officer’s decision
to award Father weeks of custodial time in California. See 23 Pa.C.S.A. §
5328(a)(10) (eff. Aug. 13, 2024 to Aug. 28, 2025). She contends the Hearing
Officer expressly credited the evidence regarding the children’s daily needs,
and the importance of “maintaining consistency in the children’s daily
routines, educational environment, therapeutic services, and medical care.”
Mother’s Br. at 29. Mother argues that the Hearing Officer and the court failed
to “sufficiently articulate why extended interstate custodial periods
appropriately accommodate the individualized developmental circumstances
the court expressly found to exist.” Id. at 30.
Mother did not raise in her exceptions her arguments that the Custody
Hearing Officer failed to articulate her reasoning, or that in awarding Father
custodial periods in California, it gave short shrift to the children’s daily needs
and Mother’s role as their primary caregiver. See Exceptions, 7/9/25, at 1-4
(unpaginated). Accordingly, the trial court did not address these issues in its
opinion denying Mother’s exceptions. See Opinion at 1-10. These issues are
therefore waived. See Pa.R.A.P. 302(a); Pa.R.Civ.P. 1915.4–2(b)(4).
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Mother did take a somewhat similar exception: “The Hearing Officer
failed to realize the disruption to the children[’s] stability and routine by
recommending extended periods of partial physical custody in California.”
Exceptions at ¶ 18(a)(1). The court denied this exception on the following
basis:
Mother in her final exception asserts that Hearing Officer
failed to recognize that the recommended periods of partial
physical custody for Father would constitute a major disruption to
the Children’s stability and structure. In the Proposed Order and
Recommendation, the Hearing Officer found that though the
distance between the parties makes any custody arrangement
challenging, it is unrealistic for the Children to only be allowed to
see Father in Pennsylvania when he lives in California, where they
were all born. Hearing Officer also determined that the factor
regarding the Children’s need for stability and continuity favored
Mother. Further, Hearing Officer acknowledged Mother’s concerns
about how the Children’s absence while visiting Father may
disrupt placement for their school, but found that it was not a
reason to deny Father custodial time in his home state.
We find that Hearing Officer did not fail to realize the
potential disruption to the Children’s stability and routine by
recommending that Father be granted partial physical custody in
California. In fact, she acknowledged and discussed Mother’s
concerns on the subject, but ultimately found that Mother’s
concerns were not a reason to deny Father’s exercise of custodial
time in his home state. Notably, under Hearing Officer’s Proposed
Order and Recommendation, Father would merely be entitled to
two (2) three-week periods with the Children in California during
the summer, which also required Children to spend a minimum of
a two (2) weeks with Mother between these periods with Father.
Though this might temporarily disrupt the Children’s routine in the
summer, it appears highly unlikely to have a significant effect on
the Children’s educational performance during the school year,
nor upon their stability in the long term. In all, we do not find any
error or abuse of discretion on behalf of Hearing Officer in this
instance. We find the Hearing Officer provided well-reasoned
analysis as to this factor which is supported by competent
evidence of record. The final exception will thus be denied.
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Opinion at 8-9. The court did not abuse its discretion in denying the exception.
In her fourth issue, Mother argues the court “did not substantively
resolve several preserved legal questions” raised in her exceptions, in violation
of Rule 1915.4-2. Mother’s Br. at 32. She asserts the court has a duty to
independently review the custody hearing officer’s determinations, which are
merely advisory in nature. She argues the court erred in concluding that
“certain arguments—including assertions concerning Father’s employment
history, financial circumstances, childcare arrangements, and challenges
characterized as relating to the weight of the evidence—did not constitute
proper exceptions because they allegedly failed to identify a specific legal error
or abuse of discretion by the Hearing Officer.” Id. at 34.
In its opinion denying Mother’s exceptions, the court stated the
following:
. . . Mother includes several statements in her Exceptions to
Custody Hearing Officer’s Recommendations that appear
unconnected to any allegation of error or abuse of discretion by
Hearing Officer. Specifically, Mother separately states that the
babysitter was not properly vetted; Father misrepresented his
relationship with the babysitter; Father has an unstable
employment history and financial instability; and the Order is
against the weight of the evidence. None of these cited statements
are proper exceptions as they do not identify any purported error
or abuse of discretion on behalf of Hearing Officer in her findings,
nor do these various statements present any associated legal
argument or analysis. Thus, as these issues were not properly
expressed or analyzed, the Court deems each of them to be
waived.
Opinion at 3-4.
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We find this issue waived by Mother’s failure to develop it on appeal.
Mother does not identify the exceptions she made that were not addressed by
the court, or explain their substance and why they should warrant relief.
Furthermore, we find Mother’s presentation of her exceptions difficult to
discern, and we agree with the trial court that these issues are also waived by
Mother’s failure to cogently present them in her exceptions as claims of error.
In her fifth issue, Mother argues the trial court abused its discretion in
finding that the eighth custody factor under Section 5328(a), regarding
parental alienation, weighed against Mother. She argues that there were three
categories of evidence the court considered to be relevant to this
determination: (1) disagreements regarding telephone communication
following Father’s relocation, (2) disagreements regarding Father’s exercise of
custody in Pennsylvania following his relocation, and (3) Father’s reports that
Mother told the children that “they would not see her again if they traveled to
California, that they would have to choose between their parents,” causing the
children to be reluctant to travel. Mother’s Br. at 38. Mother argues that even
taken as true, Father’s allegations do not make out intentional parental
alienation as contemplated by the statute, but instead reflect high-conflict co-
parenting and the practicalities of long-distance parenting.
In denying this exception, the trial court stated the following:
Mother next contends that Hearing Officer erred when
finding that Mother attempted to alienate the Children from
Father, alleging that the finding is unsupported by the evidence.
In the Proposed Order and Recommendation, Hearing Officer
takes into account Father’s various testimonies regarding Mother’s
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impact on his relationship with the Children as well as Mother’s
insistence that Father’s custodial time occur in Pennsylvania.
The Court finds that considerable evidence was presented
to the Hearing Officer which supports her determination of this
factor. Father testified that he has had difficulty contacting the
Children since his move. [N.T., 6/17/25,] at 64. When he is able
to talk to the Children on the phone, Mother often interrupts the
calls, gets angry with Father during them, or abruptly hangs up
on him. Id. Father’s last visit with the Children prior to the June
2025 hearing was in February 2025. Id. at 74. Father testified
that he visited the Children in Pennsylvania at that time and
Paternal Grandmother came with him. However, he stated that
Mother threatened to deny Father from seeing the Children if
Paternal Grandmother was with him, and that Mother even forced
her way into his hotel room to see if she was there, so Father did
not tell her that Paternal Grandmother was with him. Id. at 74-
75. Father further testified that he feels Mother has been
alienating the Children from him. Id. at 66. The Children had
previously expressed excitement about visiting Father in
California, but the oldest child has recently started saying that she
does not want to go, and Father testified that she appears to look
towards Mother for approval when talking with Father. Id. at 84-
85. Father also testified as to Mother telling the Children that if
they were to go to California, they would not see her anymore,
and that they had to choose between Mother and Father. Id. at
66. Additionally, Mother testified that she only wants Father to
talk to the Children three (3) to four (4) times a week and only
wants him to see the Children in Pennsylvania. Id. at 48-49.
Based on the cited testimony, we find that the Hearing
Officer correctly considered and weighed this factor and
articulated her reasoning for the finding in deciding the factor. A
review of the evidence does not show error or abuse on behalf of
Hearing Officer. Father testified as to his difficulty contacting the
Children, Mother’s threats to withhold the Children if Father does
not allow her to exert control over the circumstances in which he
sees them, and Mother’s own testimony about ways in which she
wants to limit Father’s contact with the Children.
Moreover, the officer before whom the record hearing is held
is in the best position to observe the proceedings and the
demeanor of the witnesses and, therefore, to determine the
credibility and motive of each party. [Swope v. Swope, 689 A.2d
264, 265 (Pa. Super. 1997)]. Thus, we will not disturb the Hearing
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Officer’s findings here as we conclude, after reviewing the
testimony and evidence presented, she did not err or abuse her
discretion in this instance, and this exception will be denied.
Opinion at 6-7.
The court did not abuse its discretion. While Father’s move may be
responsible for some of Mother’s reactions, there was sufficient evidence for
the Custody Hearing Officer to conclude that Mother was also exacerbating
the issue and thwarting Father’s relationship with the children. Furthermore,
while the Custody Hearing Officer found this factor favors Father, it does not
appear that the Custody Hearing Officer or the court placed undue weight on
this factor, as Mother’s custodial periods have not been reduced.
In her sixth issue, Mother argues the court abused its discretion in
ordering the children to spend six weeks in Father’s care because there was
insufficient evidence regarding who would care for the children during Father’s
working hours. Mother recounts Father’s testimony that he arranged for
childcare with the children’s paternal grandmother, extended family, and the
help of a nanny or babysitter. However, she argues, “the court should possess
sufficient information regarding the identities of the individuals who would
provide [the] day-to-day care, the practical operation of Father’s proposed
childcare plan, and the manner in which the children’s daily needs would be
met while Father remained at work[.]” Mother’s Br. at 42. She relatedly
asserts the court’s opinion reflects that while it “carefully considered” Father’s
testimony regarding his childcare plans for the children, the opinion “does not
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sufficiently explain why the evidentiary record before the court adequately
established the practical operation of those arrangements[.]” Id. at 44.
Mother did not raise in her exceptions whether the Custody Hearing
Officer erred in failing to elucidate further specifics regarding Father’s
anticipated childcare arrangements, and the court did not address this issue.
The issue is therefore waived. Mother also fails to present any authority
requiring the Custody Hearing Officer to make such an inquiry.
Seventh, Mother argues the court abused its discretion in denying her
exception asserting a violation of procedural due process. She states the court
concluded her claim was moot because it claimed a denial of due process at
the May 2025 conciliation conference, and any defect in that process had been
cured by the June 2025 evidentiary hearing before the Custody Hearing
Officer. Mother argues that she timely raised, through pro se motions filed
following the May conciliation conference, that “she was not permitted to
participate in the custody conference, never met with the conciliator, [and]
never discussed the proposed recommendation[.]” Mother’s Br. at 46. Mother
argues that on June 6, the court denied her motions and ordered that Father’s
exercise of custody would begin following the June 17 evidentiary hearing, but
never resolved her constitutional complaints regarding the May hearing.
Mother acknowledges that the June hearing “unquestionably afforded Mother
a full opportunity to present evidence, cross-examine witnesses, and advocate
her position regarding the parties’ competing custody requests.” Id. at 48.
However, she argues, “interim custody orders frequently establish the
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practical status quo governing the parties and may carry significant
consequences notwithstanding their temporary character.” Id. at 49 (citing
E.B. v. D.B., 209 A.3d 451 (Pa.Super. 2019)).
In her exceptions, Mother alleged, “At the time of the May Custody
Conference, both parties were represented by counsel, but neither party had
an opportunity to speak with the [conciliator].” Exceptions at ¶ 7. She further
stated, “On May 12, 2025, [the conciliator] made a Recommendation to the
Court which is full of inaccuracies and recommendations which were never
discussed between the parties.” Id. at ¶ 8.
In denying this claim, the trial court explained,
. . . Mother contends that she was deprived of due process
at the Custody Conciliation Conference level when she was not
permitted to address the Conference Officer at the May 12, 2025,
Custody Conciliation. This assertion is irrelevant to the matter at
hand; custody conciliations are non-record proceedings, and
further, Mother was represented by counsel at such Conciliation,
who never raised this objection at the time thereof pursuant to
the Recommendation. Lastly, this matter is moot since, as noted
above, after said conciliation occurred, a de novo evidentiary
hearing was held before Custody Hearing Officer on June 17,
2025.
Opinion at 3.
We agree that no relief is due. “The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” E.B., 209 A.3d at 463 (citation omitted). Counsel
represented Mother at the May 2025 conciliation conference. Even assuming
arguendo that Mother’s due process rights were violated at the conciliation
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hearing and that Mother’s subsequent pro se filings preserved this claim, any
irregularity in the conciliation proceedings resulting in the interim order was
mooted the very next month, in June, when the Custody Hearing Officer held
an evidentiary hearing at which Mother participated. Mother has not alleged
that the May order established the status quo such that it affected the outcome
of the June hearing. Nor has she argued an exception to the mootness doctrine
applies here. Cf. E.B., 209 A.3d at 462 (finding challenge to interim order that
had been superseded by final order was capable of repetition and apt to elude
appellate review, and therefore excepted from mootness doctrine, because,
“The history of this case suggests that these parties are likely to litigate
continually aspects of their custody arrangement, and the trial court might
again try to resolve their issues without conducting a full trial”).
Mother’s eighth issue is whether the trial court violated her right to
procedural due process by entering a custody arrangement that had not been
contemplated by the parties, and therefore not meaningfully litigated.
Mother’s Br. at 51. She argues her petition for modification did not
contemplate Father’s exercise of custody in California, and Father did not file
an answer or counterclaim for custody relief. Mother acknowledges that Father
was “free to oppose Mother’s requested modification and advocate for an
alternative custody arrangement at the evidentiary hearing.” Id. However,
she argues that “the specific proposal for extended California custody first
emerged during the conference process rather than through the pleadings”
id., and “procedural due process requires that the parties receive fair notice
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of the proposal actually being adjudicated so that they may fully develop the
factual record relevant to that proposal.” Id. at 53. She contends material
provisions of the proposed custody schedule were altered throughout the
proceedings, “including the duration of Father’s summer custodial periods, the
division of those periods into separate intervals, the allocation of
transportation expenses, airfare responsibilities, and additional
implementation provisions[.]” Id.
This is waived. While Mother’s exceptions stated, “It should be noted
that Father never filed an Answer to Mother’s Petition to Modify and never
raised the issue of 8 consecutive weeks of partial physical custody with a
pleading,” Exceptions at ¶ 6, Mother made this statement in the “Procedural
History” section of the filing, rather than in the “Exceptions” section. The
statement did not alert the trial court that Mother took exception on the basis
that the evolution of the custody arrangement after the pleadings stage was
a violation of her due process. Because Mother did not raise this issue as an
exception, it is waived.
Even if it were not waived by her failure to take an exception, it would
be waived by Mother’s failure to present any authority restricting the court to
imposing a custody arrangement that had been proposed by one of the parties
in a pleading. We also disagree that Mother did not have notice of the proposed
custody schedule, and note that Father filed a pre-tri