T.R. v. T.H., T.R. v. T.H. No. 2751 EDA 2016

Father (T.H.), incarcerated after a first-degree murder conviction, participated by phone in a custody hearing but was represented by counsel in person.
Parents entered a mutual agreed order granting Mother primary physical custody and sole legal custody of the child (born 2010); Father received weekly phone visits and letter-writing privileges.
Father later appealed pro se, claiming he agreed only because the custody master told him incarcerated murderers cannot receive custody rights.
Father contended the master misadvised him about 23 Pa.C.S.A. § 5329(b) (which bars custody only when a parent murdered the other parent) and that a faulty phone connection caused him to miss parts of the colloquy.
The certified record lacks any pre-hearing conversation or notes of the alleged off-the-record advice, and Father did not raise these claims in the trial court.

Issue	Father’s Argument	Mother’s Argument	Held
Whether trial court misinterpreted § 5329(b) and should remand to apply § 5328 factors	Father: Master told him incarcerated murderers categorically cannot get custody; § 5329(b) only bars a parent who murdered the other parent, so remand required	Mother: (implicit) Order agreed to; no trial-court challenge preserved; custody master’s comments not part of record	Waived for failure to raise in trial court; appeal affirmed. Even on merits, acquiescence and counsel representation preclude relief.
Whether off-the-record pre-hearing advice or faulty phone connection vitiate consent to agreed order	Father: He relied on erroneous advice and missed parts of the colloquy; would not have agreed absent those circumstances	Mother: No evidence in certified record; Father was represented by independent counsel	Waived and not cognizable on appeal because matters not in the record are deemed not to have occurred.

C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013) (statutory interpretation is a question of law reviewed de novo)
In re K.L.S., 934 A.2d 1244 (Pa. 2007) (issues not preserved in lower court are waived on appeal)
Miller v. Miller, 744 A.2d 778 (Pa. Super. 1999) (party who acquiesced in an order cannot later challenge it)
Karkaria v. Karkaria, 592 A.2d 64 (Pa. Super. 1991) (same principle on acquiescence and waiver)
Commonwealth v. Wint, 730 A.2d 965 (Pa. Super. 1999) (for appellate review, matters not in the certified record are treated as nonexistent)
Commonwealth v. Withrow, 932 A.2d 138 (Pa. Super. 2007) (reinforces the rule that the certified record limits appellate review)
In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) (incarceration can be dispositive on a parent’s ability to provide necessary parental care)