C.S. v T.S. (memorandum)
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J-S13029-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 C.S. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. T.S. Appellant No. 1700 WDA 2014 Appeal from the Order September 16, 2014 In the Court of Common Pleas of Blair County Civil Division at No(s): 2007 GN 6039 BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J. MEMORANDUM BY MUNDY, J.: FILED MAY 15, 2015 Appellant, T.S. (Mother), appeals from the September 16, 2014 custody order that denied her request to modify the existing custody order, entered January 26, 2011, with respect to her daughter, A.S., born in November 2000, and her son, J.S., born in February 2006 (collectively, the Children). After careful review, we affirm.1 Following an evidentiary hearing in December of 2010, the trial court entered the January 26, 2011 existing custody order granting C.S. (Father) sole legal and primary physical custody and Mother partial physical custody on alternating weekends. In addition, the existing custody order granted ____________________________________________ 1 The Honorable Hiram A. Carpenter, III, presided over the proceedings that resulted in the subject custody order as well as in the existing custody order. J-S13029-15 Mother physical custody every Wednesday during the school year from 3:30 p.m. to 7:00 p.m. and, during the summer, from 9:00 a.m. to 8:00 p.m. On August 27, 2013, Mother filed a petition to modify the existing custody order, wherein she sought primary physical custody of the Children. The evidentiary hearing in this matter occurred on August 26, 2014, during which Mother and Father testified. By opinion and order dated September 15, 2014, and entered on September 16, 2014, the trial court denied Mother’s request for modification. Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).2 On appeal, Mother presents the following issues for our review. I. Whether the trial court erred and/or abused its discretion in failing to place primary physical custody of the subject children in [] Mother under the law and the facts and the circumstances of this case[?] II. Whether the trial court erred and/or abused its discretion in its application of the custody factors to the facts and circumstances of this case in deciding not to place primary physical custody of the subject children in [] Mother[?] III. Whether the trial court erred and/or abused its discretion in failing to significantly expand the amount of time that the [ ] Mother has physical custody of the subject children in view of her availability and clear capability of caring for them ____________________________________________ 2 On November 10, 2014, the trial court filed a notice of its intent to rely on the certified record and its previous opinions for purposes of Mother’s appeal. -2- J-S13029-15 and meeting their needs during the times when [] Father is unavailable[?] Mother’s Brief at 4. The scope and standard of review in custody matters is as follows. [T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it…. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination…. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion. R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009) (quoting Bovard v. Baker, 775 A.2d 835, 838 (Pa. Super. 2001)). Moreover, [O]n issues of credibility and weight of the evidence, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses. The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. 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. -3- J-S13029-15 R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the trial court’s conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006). A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations omitted). Further, we have stated the following. 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), quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004). The primary concern in any custody case is the best interests of the child. “The best-interests standard, decided on a case-by-case basis, considers all factors that legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). The Child Custody Act (the Act), 23 Pa.C.S.A. §§ 5321-5340, became effective on January 24, 2011. Because the proceedings in the instant case occurred after the effective date of the Act, the Act is applicable. See C.R.F. v. S.E.F., 45 A.3d 441, 442 (Pa. Super. 2012) (concluding that “where the -4- J-S13029-15 evidentiary proceeding commences on or after the effective date of the Act, the provisions of the Act apply even if the request or petition was filed prior to the effective date[]”). Relevant to this custody case are the factors set forth in Section 5328(a) of the Act, which provides as follows. § 5328. custody. Factors to consider when awarding (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)(1) and (2) (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. -5- J-S13029-15 (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. -6- J-S13029-15 (16) Any other relevant factor. 23 Pa.C.S.A. § 5328(a).3 This Court has stated that, “[a]ll of the factors listed in section 5328(a) are required to be considered by the trial court when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). 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.” 23 Pa.C.S.A. § 5323(d). Additionally, “section 5323(d) requires the trial court to set forth its mandatory assessment of the sixteen [Section 5328 custody] factors prior to the deadline by which a litigant must file a notice of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013)…. 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.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68 A.3d 909 (Pa. 2013). A court’s explanation of reasons for its decision, which adequately addresses the relevant factors, complies with Section 5323(d). Id. A.V., supra at 822-823. With these standards in mind, we turn to the merits of this appeal. ____________________________________________ 3 The Act was amended, effective January 1, 2014, to include the additional factor at Section 5328(a)(2.1). -7- J-S13029-15 All three of Mother’s issues pertain to the trial court’s discretion in applying the custody factors under the Act to the facts of this case. Specifically, Mother argues “there is no sound basis for not placing primary physical custody of the children with her, together with substantial periods of partial custody with Father consistent with his work schedule[.]” Brief at 11. Mother’s Mother argues the current custody arrangement “results in significant periods of time during which the [C]hildren are cared for by babysitters and others.” Mother’s behavior may Id. be Further, Mother asserts that “although unusual, inconvenient, uncomfortable, or somewhat disruptive; this should not be grounds for denying her request for primary physical custody of [the C]hildren unless the conduct can be specifically shown as having a detrimental impact on the [C]hildren,” which Mother asserts it does not. Id. at 12-13. In its September 16, 2014 opinion and order, the trial court fully addressed all of the Section 5328(a) custody factors in light of the evidence presented during the hearing on August 26, 2014. Trial Court Opinion, 9/16/14, at 6-20. In addition, the trial court incorporated its opinion dated January 26, 2011, with respect to the existing custody order. Specifically, the trial court explained its rationale as follows. [B]ased on the record created at the present hearing that Opinion remains extremely accurate as to the issues in the case and, given this opportunity, we would not change a single word of our earlier writing (notwithstanding the passage of almost four years) as accurately reflecting the situation both as it -8- J-S13029-15 existed then and as it exists now. In fact, most of [] Mother’s presentation involved a repeat of what we heard at that time. Id. at 5-6. In the January 26, 2011 opinion, the trial court stated that, “[a]t the outset, we acknowledge that [M]other’s mental health condition and her resultant behaviors are key issues in this case…. They affect both her thought process and her judgment.” Trial Court Opinion, 1/26/11, at 5. In the instant matter, Mother’s mental health condition was undisputed. In her brief, Mother states she suffers from “certain disabilities resulting from an accident when she was a teenager….” 10. Mother’s Brief at Further, at the custody hearing, Mother testified she had a traumatic head injury and acknowledged that she suffers from short-term memory loss. N.T., 8/26/14, at 68, 101. Mother also testified she suffers from Attention Deficit Hyperactive Disorder (ADHD), for which she is prescribed Adderall, and she suffers from Post-Traumatic Stress Disorder (PTSD). N.T., 8/26/14, at 68. Finally, Mother testified she is under the care of a psychiatrist whom she sees on a monthly basis. Id. With respect to Mother’s mental health, the trial court noted that ADHD and PTSD “were not established as the diagnosis in [Mother’s] medical records[.] [However,] the impulsive behavior, acting without regard to consequences, and disorganized thinking on the part of the Mother which are documented in the mental health records were on full display both through -9- J-S13029-15 [] Mother’s testimony and reviewing her actions where the [C]hildren are concerned.” Trial Court Opinion, 9/16/14, at 17. In considering all of the Section 5328(a) custody factors, the trial court found that the most relevant ones weighed in favor of Father.4 Significantly, with respect to Section 5328(a)(4), the need for stability and continuity in the Children’s education, family life and community life, the trial court found that Mother’s mental health difficulties “impact dramatically the stability and continuity which she could offer the [C]hildren.” Trial Court Opinion, 9/16/14, at 11. The trial court found that, “[a]ll of [the Children’s] stability revolves around [Father’s] household and, in fairness, the established visitation schedule with their Mother.” Id. at 10. In addition, the trial court found that Mother “does not presently have a home in which the [C]hildren could be placed even if the [c]ourt were inclined to do so.” Id. at 12. The trial court found that Mother’s present residence “is red tagged[5] and she offered no specific plans for moving to another property which she owns in Hollidaysburg located near the Father.” Id. ____________________________________________ 4 The trial court found that Section 5328(a)(5) and (6) did not favor either party. Further, it found that Section 5328(a)(7) and (11) are not relevant to this case. 5 Mother acknowledged on cross-examination that the gas for her home was red-tagged, or shut off, during the past winter and remained red-tagged at the time of the subject proceedings. N.T., 8/26/14, at 102-103, 133-134. - 10 - J-S13029-15 With respect to Section 5328(a)(9), i.e., assessing which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the [C]hildren adequate for their emotional needs, the trial court found that, “Mother is so caught up in her own issues, bogged down by her own difficulties, and unable to maintain structure … that she can make no case she would be remotely equal to [ ] Father who demonstrates all those qualities in abundance.” Trial Court Opinion, 9/16/14, at 14. The trial court summed up its decision to deny Mother’s petition for modification of the existing custody order by stating as follows. In closing, as we noted in December 2010, this is an extremely difficult Opinion to write. No fact finder or [c]ourt could take pleasure in confronting this Mother with the harsh reality of her own behavior when, in fact, we are convinced she has very little control over it due to her mental health issues. However, we cannot change the fact that custody opinions are about the best interest of children and not in the best interest of a mother who clearly needs to be affirmed and feels she has been taken advantage of by everyone involved at every opportunity. The best we can do for this Mother is affirm that we believe her intentions are good. Her performance and demonstrated abilities, however, establish overwhelmingly that the best interest of the [C]hildren lies with remaining in the primary [physical] custody of their Father. Id. at 20. Upon careful review of the certified record, including the notes of testimony, the parties’ briefs, the trial court opinions entered September 16, 2014, and January 26, 2011, and the applicable law, we discern no error of - 11 - J-S13029-15 law or abuse of discretion by the trial court in its custody decision.6 Accordingly, we adopt the trial court’s opinions as dispositive of Mother’s issues on appeal. See Trial Court Opinions, 9/16/14 and 1/26/11. The parties are directed to attach a redacted copy7 of the trial court’s opinions in the event of further proceedings. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/15/2015 ____________________________________________ 6 To the extent Mother argues that the trial court erred by describing her mental health condition within the context of Section 5328(a)(14), the history of drug or alcohol abuse of a party, we conclude that this error was harmless. The subject proceedings did not reveal any drug or alcohol abuse by either party. Likewise, the trial court did not find any drug or alcohol abuse by Mother or Father. We recognize that the trial court discussed Mother’s mental health in the context of Section 5328(a)(14), rather than under Section 5328(a)(15), the mental and physical condition of a party, but we conclude that it did not result in any prejudice to Mother as drug or alcohol abuse by either party was not a basis for the trial court’s conclusion. 7 The copies shall include the redacted names of Mother, Father, and the Children. - 12 - Circulated 04/29/2015 11:17 AM c. s. COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA Plaintiff 07 GN 6039 vs. ·T.S, Defendant HON. HIRAM A. CARPENTER III PRESIDING JUDGE EDWARD·E. ZANG, ESQUIRE COUNSEL FOR PLAINTIFF LUCAS KELLEHER, ESQUIRE COUNSEL F9R DEFENDANT OPINION AND ORDER This matter comes before the Court on request of the mother for an Evidentiary Hearing to determine custody of the parties' children, A.S. 14, 2000, and J. S. born November born February 22, 2006. An Evidentiary Hearing was held to a conclusion on December 21, 2010. We interviewed A,S, on December 22, 2010. The record is closed and the case is ready for decision. At the outset, we note that although the mother petitioned for this evidentiary hearing, each of the parents believes the parties' present custody arrangement reflected by the Court Orders of September 1, 2009, and June 21, 2010, are not serving the best interest of these two minor children. From the mother's perspective, she believes that an Order either establishing her as the primary custodian or reflecting a custody arrangement closer to 50/50 would be best. She also believes the father's chilchildr en chi91d extensive use of babysitters when he is working is not in the Circulated 04/29/2015 11:17 AM children's best interest and those times should be spent with her. The mother has little respect for the father. She has a firmly entrenched belief the father is not 'there" for the children. The mother suffers from a personality disorder which is a major factor in the case. The father presents as having made reasonable efforts to work with the mother where custody is concerned to little avail. Presently, he believes the numerous exchanges involved in implementing the present custody Orders are not in the best interest of the 'Children. He suggests the mother's time be reduced to one night a week for a few hours together with every other weekend. The case was unusual in that the father's former counsel (Attorney Lee Sill) testified as to the circumstances surrounding their September 1, 2009, Order. The mother believes she was taken advantage of in that negotiation by father's counsel when she was unrepresented. Although we heard this testimony, it is not critical to our determination for two reasons. First, if the mother offers the testimony to demonstrate it was always her intention to serve as primary custodian, we would believe her even without this testimony. We do not question the mother's sincere interest in the children irrespective of whatever Order might have been entered on September 1, 2009. Second, significant time has passed (over sixteen months) since that Order was entered. Simply put, the case is not about whether the Order entered in September, 2009 was appropriate - rather, the case is about the best interest of the children as we sign this Opinion and Order in January, 2011. Finally, while our observation of the mother at our hearing of December 21, 2010, suggests that negotiating with her was risky, we acknowledge we did not see her in September, 2009 nor were we a party to what extent other family members may have been involved on her behalf in helping her understand the document to which she "agreed." In any case, we are Circulated 04/29/2015 11:17 AM neither bound by the September 1, 2009, Order not do we conclude from it that the mother was "abandoning" her children. Finally, we interviewed A.S. as part of the case. We will discuss that interview later in this Opinion. As always, our paramount concern in a case whether it involves custody or visitation is the best interest and permanent welfare of the child. Commonwealth ex rel Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). All other considerations are deemed -subordinate to the child's physical, intellectual, moral and spiritual well being. In the interest of Tremayne Quame !dress R., 429 A.2d 40, 43 (1981). Parents do not have a property right in their children. Whatever claim they may make for either custody or visitation rights, is to be tested by what is in the best interest of the child. See generally, Commonwealth ex rel Children's Aid Society v. Gard, 66 A.2d 300 (1949). A custody decree is not meant to punish a parent or anyone else, its only purpose is to help the child. In Re: Custody of Temos, 450 A.2d 111 (1982). The clear trend has been to abolish presumptions in custody disputes. In child custody cases, the Court must continually hew to the polestar of a child's best interest eschewing presumption and surmise. Morris v. Morris, 412 A.2d 139, 141 (1979). The Court should avoid mechanical determinations and focus its analysis on a close scrutiny of all particular facts relevant to determining the child's best interest. In Re: Custody of Hernandez, 376 A.2d 648, 653 (1977). Further, the ability to care for a child is to be determined as of the time of the custody hearing, not as of an earlier time. In Custody of Frank, 423 A.2d 1229 (1980). Decisions must be madeon the basis of current facts and not the past conduct of the parties. In Re: Leskovich, 385 A.2d 373 (1978). The primary concern in custody matters lies not with the past but with the present and future. Hooks v. Ellerbe, 390 A.2d 791 (1978). Facts at the time of hearing 3 Circulated 04/29/2015 11:17 AM are the foundation for the determination of the Court. Augustine v. Augustine, 312 A.2d 477 (1974). Past conduct is not relevant unless it will produce an ongoing negative effect on the child's welfare. In Re: Leskovich, supra. At hearing, each parent shares the burden of proving by a preponderance of the evidence that an award of custody to him or her would serve the best interest of the child. Ramos v. Rios, 378 A.2d 400 (1977). The burden of proving superior fitness as a parent rests equally with both parties. In Re: Custody of Hernandez, supra. In considering a change, the trial court is required to consider the advantages and risks where the minor child is concerned. Continuity and stability are important elements in a young child's emotional development. Commonwealth Jordan v. Jordan, 448 A.2d 1113 (1982). The fact that a stable, long-continued ex rel and happy relationship is developed between the child and one parent may be of critical importance to the formulation of an appropriate decree. Pamela J.K. v. Roger D.J., 419 A.2d 1301. . However, while stability is a factor, it is not the sole criteria in a custody action. The fact that a child has not lived with a parent for a considerable length of time will not alone defeat that parent's right to custody. In Re: Custody of Hernandez, supra. The obstruction of a non-custodial parent's right to contact with a child is an extremely serious matter, especially when it violates Court-ordered visitation or partial custody. Pamela J.K. v. Roger D.J., supra. A custodial parent's obstruction of the non-custodial parent's right to visit the child may serve as the basis of an Order changing custody. Pamela J.K. v. Roger D.J., supra. Additionally, where shared custody is being considered by the Court four criteria are set forth for the hearing consideration. (1982). In Re: Wesley J.K., 445 A.2d 1243 Circulated 04/29/2015 11:17 AM DISCUSSION At the outset, we acknowledge that the mother's mental health condition and her resultant behaviors are the key issues in this case. They are matters of great concern to everyone involved. They affect both her thought process and her judgment. They also affect her attitude toward the father. This last finding as to her ability to work with the father is critical. A 50/50 sharing of custody requires considerable ability on the part of the parents to work together. In this case, we have exactly the opposite situation. In fact, not only is there an absence of respect and cooperation with the father there is deliberate undermining of his role. After hearing the case, we are satisfied of the father's good intentions; his willingness to work with the mother; his willingness to work with the extended family; and his high level of involvement with the children. The mother acknowledges none of this. Instead, her testimony suggests that the father was not there for the children and that he abandons them for babysitters when he was working. She suggests he has been involved in relationships which are detrimental to the children despite his obvious high level of involvement and interest. This represents exactly the type of situation where a 50/50 sharing of custody traditionally does not work. Indeed, were.we to implement such an arrangement we are satisfied it would not be in the best interest of these children. There is also the matter of the mother's decision making. Restricting ourselves to the two years preceding our hearing, the mother has entered the father's home unauthorized, stolen property from that residence, required the father to seek a PFA simply to protect his privacy, received a DUI charge and repeatedly made questionable decisions in most aspects of her life where relationships (including her relationship with the children) are concerned. Circulated 04/29/2015 11:17 AM matter what efforts the father (or the mother's extended family) would make they would not be enough. The reality is that rather than a 50/50 sharing of parental duties these children need a parent who is in charge. That parent has to be the father. Fortunately, the father is well positioned to accomplish the role. He has made considerable adjustments with his work in recent months which allow him to be home much more with the children. He is in all other respects willing and able. He is willing to work with the mother (as best anyone can) whatever Order the Court enters in spite of the mother's undermining his attempts at new relationships and generally making a nuisance of herself in his personal life. Children need stability, permanence, consistency, and support. They also need to be kept out of custody cases. They are not getting that under the present arrangement. Unfortunately, the mother's unpredictable behavior extends to them. Recently, the mother has returned the children to the father on two occasions because of her inability to adjust to behavior by the children she did not approve. This included most recently returning A. S, punishment. to the father together with three bags of her clothes on Thanksgiving Day as a The message that is sent by such an action is not one of discipline but rather one of rejection. This type of impulsive action by the mother is the rule and not the exception. One need only read her E Mails to the father (of record in the case) and listen to her testimony to see how fixed her views are and how impulsively she will act on them. While we would never accuse the mother of being deliberately physically dangerous to the children, we have no hesitancy in declaring her behaviors dangerous to their mental health and well being. Circulated 04/29/2015 11:17 AM For all of these reasons, we reach the same (unfortunate) conclusion that the father reluctantly offered. That is, that the mother's time with the children must be reduced given the consistent stability, permanence, and support children need. This decision is regrettable and unpleasant. We are aware the mother has supportive parents and siblings who would offer every assist. However, we cannot help but observe that this same extensive support system was in place when she committed every single misjudgment which has occurred in the approximately two and one half years leading upto this hearing. Simply put, the mother is unable to control her behaviors notwithstanding a support system which is there to prevent them. Finally, we interviewed A.S, That interview (unfortunately) was also· revealing of the mother as we described her. It was clear A . .S. interviewed. did not want to be She was clinging to her mother as tightly as her mother seemed to be clinging to her as we approached her. She left her mother's side only when she was advised by the mother that the Court was "on our side." Given A. S. know why she was afraid. We asked A, S. 's level of fear, we needed to what she thought we would talk about. She told me "you just want to meet me" and to discuss with her "where she would be residing." Of course, those of you in the room (Counsel and extended Family) will recall that we did tell everyone we wanted to "meet A.S, with A~S. " but we would not be discussing where she wanted to live. There is no nuclear rocket science involved in concluding the mother planted this seed with A. S.~__ ; None of this is surprising as we have observed the mother: She clearly has trouble interpreting what she hears and maintainingclear thinking. Unfortunately, we acknowledge our decision will undoubtedly be hard on the mother. Much like the father when he testified that he was pleased to see-the mother Circulated 04/29/2015 11:17 AM involved in new male relationships because they could make lier more stable, we suspect the children provide an anchor for her as well. However, our test is not what will help the mother - our test is what helps the children. We would recommend to the mother that she counsel so she can function more appropriately and become a better role model for the children. If there is to be growth in the ability of the mother to offer these children some level of consistency it lies in getting help. Accordingly, consistent with all of the above, we enter the following Order. 1. The father shall have the legal and physical custody of both the parties' minor. children. 2. The children shall reside primarily with the father. 3. The mother shall have periods of partial custody every Wednesday during the school year from 3:30 p.m. until 7:00 p.m .. 4. During the summer months, when the children are out of school, the mother shall have every Wednesday from 9:00 o'clock a.m. until 8:00 o'clock p.m .. 5. The mother shall have partial custody from 3:30 p.m. every other Friday until Sunday at 6:00 o'clock p.m. year round. 6. The mother shall have one week of vacation with the children in the summer where her regular weekend visitation will be extended from Friday at 3:30 until the following Friday at 3:30. 7. The parties shall share Holidays by agreement. However, in no event will the mother have less than four hours with the children on the Holidays of Christmas, Thanksgiving, and Easter. Memorial Day, the 4th of July, and Labor Day will be rotated. In odd numbered years the mother shall have Memorial Day and Labor Day from 8:00 a.m. until 9:00 o'clock p.m. The father will have the 4th of July Circulated 04/29/2015 11:17 AM Holiday. In even numbered years the father will have Memorial Day and Labor Day and the mother will have the 4th of July from 9:00 o'clock a.m. until after the fireworks when they would be returned to the father. 8. Transportation shall be shared with the party having the children to drop them off at the drop-off point. Transfers shall take place at a public store such as~ Sheetz convenient to the parties by mutual agreement. Both parents may designate an adult to perform transportation if their personal attendance is prohibited. 9. The children shall be with the mother on Mother's Day from 9:00 o'clock a.m. until 6:00 o'clock p.m. and with the Father on Father's Day from 9:00 o'clock a.m. forward. The schedule for these days will take precedence over the normal schedule. 10. The children's birthday will be spent with whoever has the child on that day. 11. Each party shall keep the other informed of their current address and telephone number. 12. Each party shall have access to school performance and medical care which shall be done through the schools and the medical providers who are directed to provide the information to both parents. 13. Neither party shall engage in any conduct which presents to the children a negative or hostile view of the other, nor shaJJ they aJJow any third party to act in such a manner that would hamper the natural love and respect of the children for either parent. 14. The parties may decide different time arrangements and make decisions for the children whenever they mutually agree to do so. Nothing in this Agreement is understood to limit or restrict the ability of the parties to mutually .agree on 9 JlJI:EE Q",RPENTER Circulated 04/29/2015 11:17 AM PAGE 5933038 terms of this ~· agreement will be followed. .. ; ... ·.~. ;: 15. ALL HO::f.,fflAY SCHEDULES.SH..,U,LSUPERSEDE ANY OTHER TIME .,,·._:,::.11f:'r:-:,,·· • 16. \~ijµ'rtON OF THIS ORDER BY ANY PERSON MAY RESULT IN CIVIL MrilCRIMINAL PENALTIES. INCLUDING PROSECUTION PURSUANT TO '\?{:'::.:::··<·.· , • l~ ... sk:i;noN 2904. OF THE PEN~SYL VANIA CRIMES CODE, INTERFERENCE ........ 'WITH CUSTODY OF CHJLDREN. 17. Jurisdiction of the children shall remain with the Court of Common Pleas of Blair County, Pennsylvania, unless or until jurisdiction would change under the Uniform Child Custody Jurisdiction Act, BY THE COURT, SA 10 11 Circulated 04/29/2015 11:17 AM IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA c.s. Plaintiff v. NO. i007 GN 6039 TJS, Defendant HON. HIRAM A. CARPENTER, III SENIOR JUDGE EDWARD ZAi'-iG, ESQUIRE COUNSEL FOR PLAINT I FF TERRY DESPOY, COUNSEL FOR DEFENDANT ESQUIRE OPINION AND ORDER This matter comes before Mother for an evidentiary party's the Court on request of the hearing to determine - A,S. children and .Y, S. , born November , born February hearing was held to a conclusion 21, the Mother 2014. The the Court offering her as the primary custodian children would be in their best interest. offered a number of re~sons true. Although follow (and inconsistent· in certain regards) the Mother's why she believes present~tion for a change in custody The this is was somewhat hard to her "main" is the Mother's -21-· 2000 An evidentiary 26, Mother argument 14, for decision. comes before that an order entered establishing of the.minor 2006. on August record is closed and the case is ready Essentially, custody of the belief she is Circulated 04/29/2015 11:17 AM more available to work to the children and resulting than the Father use of babysitters due to his to supervise need the children. In response, babysitters and does supporting change while the have children in primary ~ontrary, he believes be continued Father custody as the financially, is the present since in all he is required only means he does not presently indicated. arrangement of its to use of believe a On the which our Opinion of January As always, our paramount involves agrees to work custody the order in the case should the has 26, been 2011 particulars. concern in a case whether or visitation is the best interest it and ( permanent v. welfare Pierce, 493 Pa. of Tremayne 292, are considerations intellectual, of the children. deemed for 66 A. 2 300 (1949). parent or anyone In Custody Re: either Commonwealth of Temos, 555 (1981). best ex rel Its to the well A.2d 43 interest of the Children's Aid only 4~0 A.2d 2 111 (1981). -22- Parents Whatever rights Society claim is to be children. v. See Gard, to punish is .to help (1982). physical, In the ·interest is not meant purpose Pierce other child's children. or visitation decree ex rel All being. 40, in their custody A custody else. 429 right by what is in the generally 2d subordinate Idress R., do not have a property tested A. moral and spiritual Quame they may.make 426 Commonwealth the The clear a child. trend Circulated 04/29/2015 11:17 AM has been to abolish presumptions children custody polestar of a child's surmise. cases, Morris v. on to determining Hernandez, best interest 412 mechanical a close child's 376 A.2d 648, eschewing A.2d 139, of all best 653 not as Further, is to be determined custody hearing, Frank, 423 A. 2d 1229 basis of current facts In Re: Leskovich, 385 custody future. time matters Hooks v. Ellerbe, are the Augustine hearing, each preponderance the 373 past v. parent of foundation for shares burden the the evidence 400 elements ex rel the 312 A.2d that (1977). Commonwealth In Custody of of ~he concern Jordan v. Jordan, -233 present and at the A.2d the by a of custody emotional of At and stability 448 in (1974). of the child. in a young child's parties. Facts of proving an award Continuity on the determination 477 to the conduct Augustine, Rios, · important time. of 791 (1978). the best interest A.2d ability The primary 390 A.2d relevant must be made (1978). or her wou~d serve 378 the the time. Decisions and not A.2d of its Custody of lies not with the past but with the 6f hearing Court. as of an earlier (1980). facts In Re: and The and focus interest. care for a child hew to the (1979). particular (1977). In presumption 141 determinations scrutiny the disputes. Court must continually Morris, Court should avoid analysis the in custody to Ramos v. are development. 1113 him (1982). Circulated 04/29/2015 11:17 AM The· principles Pennsylvania law. Pennsylvania's Pa.C.S.A. petition enunciated More recently, adoption §5328(a), howev~r, in as a result of the of the new Child Custody Act at 23 that act directs that when a party files a for modification of a custody order, the trial court must perform a "best interest considering above are time honored of the child" analysis all of the Section 5328(a) factors. Those factors are as follows: 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 contin0ed risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. 3) The parental duties performed behalf of the child. 4) The need for stability and continuity in the child's education, family life and community life. 5) The availability 6) The child's 7) The well-reasoned preference of the child, based on the child's maturity and judgment. . 8) 9) ·- of extended by each party on family. sibling relationships. The attempts of a parent to turn the child against other parent, except in case of domestic · violence where reasonable· safety measures are necessary to protect the child from harm. Which party is more likely to maintain 4 -24- a ioving, Circulated 04/29/2015 11:17 AM 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, physic~l, emotional, developmental, educational and.~pecial needs of the child. 11) The proximity of the residences of the parties. 12) Each party's ability to care for- the child or ability to make appropriate child-ca~e 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 of 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 or member of a party's household. 16) Any other As the language relevant of a party factor. of the Act suggests, these factors are not I the only factors included a Court may consider. as part of However, they are to be the analys~s. DISCUSSION At the butset, matter three · · 2 2, previously a nd a half we acknowledge this Court at a custody evidentiary years ago on December 2 010 to a conclusion.-· 2.1., also heard this proceeding 2010 over and December ·We .i ncorpo r at;e 1:hcJ.t Opi n j on in its 5 -25- Circulated 04/29/2015 11:17 AM entirety as part of our current Opinion. record created at the present hearing extremely accurate opportunity, writing that Opinion remains as to the issues in the case and, given this we would not change a single word of our earlier (notwithstanding accurately Indeed, based on the reflecting as ·it exists now. the passage of almost four years) as the situation both as it existed then and In fact, most of the ~other's presentation involved a repeat of what we heard at that time. In updating at this hearing, statutory custody the matter, which is essentially this can be fairly accomplished factors as our format. proceed to a discussion what occurred using the Accordingly, of the individual we factors as the format for this Opinion. 1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. This issue clearly favors the Father. Father's testimony additional ~eekend time which is presently considering activities ordered The Father's response telling as to his attitude. he evaluates the that he receives many requests for time beyond the every Wednesday confirmed by her. In fact, and every other for the Mother is to those requests is Since the requests are numerous, them on a case by case basis. what people are involved in the extra time, what might be fuh for the children 6 He tries to be fair -26- with their Mother, the Circulated 04/29/2015 11:17 AM event or situation time, and his the Father triggers own plans testimony which confront. We are site The first is house the children off to school but goes to the testimony, "over of Father's she home not as It could hardly get more obtuse invasion of privacy children remarkably Father is impulsive suggests actions o ff poised ~learly sensitive than his own confirmed by her p~rt, Mother, has the shown herself Mother's consistent the mental while offering -27- but this ability the clear to get Father this. The situation, consequences to be anything "" .7 with behavior health In her the kids''. Despite in dealini to the and her see with bus stop behavior fashion, at to get door. demonstrated to reside the on the that. he the appears randomly) wants to in an orderly she does not understand (all just from children this what is forced only waits at "she and restrained tendencies, For her flexible", to school the by Mother she (and confirms it is justified the given examples Father and knocks only and response and probably admission though not believes his specific occasions even this, the Mother the edge" what this on numerous To accomplish this comi~endable the Mother's Father's for additional on the part of the to two typical the him. but - namely;-actions the police. request Frankly, reasonable would make most parents involve the (if any). is not only is confronting which which her which of her records). she would but. "be At hearing, is Circulated 04/29/2015 11:17 AM the Father of the produced difficulty of these Friday offering return 5, the Father that from summer any loss The bottom wished in a field at the time of a simple change trip while could July a conclusion the offers a concrete basis for lacks flexibility where the children concerned. Nothing suggests has otherwise. up" trying In fact, to ask for shoulders which In fact, request attempts reason that the in the are involved to achieve what flexibility 8 which he has order is than be she he had attempted quo continue are "given so it is all is to be achieved. the Mother as he characterized status offers certainly why he was resistive that the Father testified been a "disaster" incident the Father confronts overtures babysitters that the Father any flexibility (and justifiable) periods.when since if any flexibility That reality for the Mother's occurred be so in counsel's in fact, on·his hour on resistance. which and was so well explained the the children's of time) he met with that over such line to move camp one-half to participate on Sunday #2 as examples proposal Mother, large when hour implemented 2011 Mother. A.S. (to balance fairly the shows one-half To encounter #1 and with for the Mother to allow Exhibits in working exhibits pick up. time Defendant's it. Thus, to counsel used is more during presently. this and it had the Father's to be the order he can working -28- a while he with the Circulated 04/29/2015 11:17 AM Mother while at the same situation makes time having some control over the sense. 2) The present and past abuse com,~itted by a party or member of th~ party's hou s eho Ld, 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 su;perv:i~ion. of the child. Neither issue of these parents in the case. safeguards The In this regard, intervenor permission), checking on __ who at least occasion per it" with the mother again indicative consideration Seen from makes this achieve this perspective, Mother's situation necessary interventions day of this hearing children without constitute has not for (without the babysitting, and on testimony impulsive of abuse Father for the All this behavior is and lack of intrusiveness in attempting children him to work. it was by the 9 "into of that behavior. and unannounced. some form getting Indeed, the first day -29- this the Even the home as of While this may Mother, to while providing had been at the Father's (since to Fath~r's·horne the Mother's the th~ hesitated seem to know no boundaries. she were leaving permission or f a major question of one of the babysitters. more difficult the supervision the the Mother's of the consequences an orderly to is doing of the Mother's is by the Father in his use of the Mother by going abuse however, provided be an active one that Mother does, a nd supervision babysitters. claims the school) or may not type of Circulated 04/29/2015 11:17 AM by interventi6n her is both typical appropriate. The Father offering_ the Mother's that AJS, 3nxious accompanied and deals with it unannounced - especially by argumentative since viewed as by the Mother best as he can while appearances do make the visits can be beh~vior. 3) The parental duties performed by each party on behalf of the child. While hearing) the parties the Father supported Presently, nothing were the Father c learly together primary performs duties are have any issues in his hous~hold, successful), to our 2010 the Mother's to suggest the children remarkably (prior all neglected at school role. and there is in any way or (where both are or with their babysitters from his perspective. 4) The need for stability and continuity in the child's education, family life and conununity life. This factor favors the Father overwhelmingly. children have now spent the primary custody revolves of their around his household visitation that the majority schedule the children not getting of their school Father. and, family and the latter, the fact in fairness, While she does church when she has them on Sunday herself As to the performance of parental 10 in the established the Mother religion and that is time All of their stability with their Mother. need The duties, -30- not they take offers are them to as she testified. no claim is made by Circulated 04/29/2015 11:17 AM the Mother that the Father is not providing adequate care in any specific regard. While we will discuss the Mother's later in this Opinion, difficulties mental health issues it is more than fair to say those impact dramatically the stability which she could offer the children. and continuity Indeed, basic concerns as to the children being where they need to.be, when they need to be there, and with the appropriate tools for the event are all issues were they in their Mother's care. demonstrated real difficulty in response to counsel's any particular listening believes advantagi to stay on task on was the overwhelming to her testimony. everything clearly since 2010 was contrary and continuity alterations for the children of court records, Father through the court system. question was) by the in December (no matter what the original again and again at our hearing. 11 and was Her beliefs in this regard are fixed and unchanging. _ We heard them in detail to them repeated to her being taken of by counsel, and her being manipulated 2010 and listened into old impression In fact, the Mother which occ~rred stability based on lies, Her inability over and (all of which occurred prior to our 2010 hearing) establishing (this is repeated current issue as opposed to relapsing themes and behaviors December simply staying focused and on task questions over again in the record). In fa~t, the Mother -31- It is hard to Circulated 04/29/2015 11:17 AM believe a mother intellectual resulting so fixated and suffering deficits impulsive continuity from the obvious from which this Mother suffers with behavior could provide stability and for children of this age. Beyond that, primary residential custody for now could be fairly decided without more on the basis the Mother does not presently have a home in which the children could be placed even if the Court were inclined to do so. residence moving is red tagged and she offered to another property located near the Father. in response to questions First, she offered residence Her present no specific plans for which she owns in Hollidaysburg At·hearing, regarding she testified the children's both ways schooling. she would use Baker School at her present while later offering she would fix the home up in Hollidaysburg and move there so the children could maintain their present school district presentation in Hollidaysburg. is not reassuring resided the past twenty-five no explanation This type of when the home where she has years is presently red tagged with by the Mother how or why she allowed that to occur or what plan she has to remedy the situation. to the Father's stable residence, the alternative the Mother is chaotic to say the least. 5) The availability of extended 12 family. -32~ tompared offered by Circulated 04/29/2015 11:17 AM Both extended children. hearing, While hone we have and (especially children families (if 6) every not the Mother with children spend suggest the appropriate entering other. no one else residing others in visitation request this of the is not resides with in his between a girl entering them the two eight~ nothing normal grade The together We heard are not The presently are with her). periods. their residence. with their Father and as to and a boy grade. ~) The well-reasoned preference the child's maturity and judgment. We did not entirely the past but when the children relationships third these involve The Father all of their time between of of them). sibling relationship (except as the Mother's at our they are interested supportive custody to the sibling relationships. has had significant resides alone well is family appeared ide) s Mother's each There and important reason to believe on the Mother's The children's children. available of the extended The child's interaction are interview parents. the children We agree with (and may never be) a child of the child, ba~ed on in this case at the that decision. preference Frankly, case. 8) The attempts of a parent to turn the child against other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. -33- 13 Circulated 04/29/2015 11:17 AM While neither parent made a claim the other parent was trying to turn the children against them, the Mother's of appearing at the Father's household and remaining occasions parents' uninvited, there even after being requested certainly create a possible relationships behavior unexcused, to leave on some issue in terms of both with the children over time. 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. As to maintairiing a loving relationship, parties are committed Mother's in that regard. request for primary is no real basis to believe primary both of these The problem where the custody is concerned the relationships if she were custodian would be stable, consistent, The Mother is is .that there and nurturing. so caught up in her own issues, bogged her own difficulties, when testifying and unable to maintain in a court environment) down by structure (even that she can make no case she would be remotely equal to a Father who demonstrates all those qualities stability in abundance. at work, consistency the Father's with the children, of many of the Mother's behaviors children In fact, and tolerance while acknowledging the enjoy their time with her all speak to his superior~ty on this issue. 10) Which- party is more likely to attend· to the daily, physical, emotional, developmental, educational and special needs of the child. 14 -34- Circulated 04/29/2015 11:17 AM This is clearly to this will point follow in this Opinion later). the children's there the Father for all is no claim are not the those needs children the reasons (and the additional In fact, there needs of children reasons is no suggestion being met stated which by anyon~ Further, presently. have any special needs beyond in their age group would normally experience. 11) The proximity of the residences In terms of the present not a factor party in moves from Altoona an increase household impact custody arrangement, in the case since implementing in problems (due to a custody it appears the current closer the Father the Mother's schedule. the children situation become somewhat custody actually If the while invasion of it) Of course, attending the problematic since we do not really know this may cause his would not inability be an issue there were it Mother's would school is Mother in maintaining to move into the home in Hollidaysburg regarding distance to limit neither schedule. to the Father, for of the parties. and their we to transfer where th~ Mother would reside. 12) Each parent's ability to care for the child or ability to make app~opriate child-care arrangement$. The Father is· well grounded maintain his household. as to what he must do to It is apparent he is -35- 15 devoted to the Circulated 04/29/2015 11:17 AM children one hundred Otherwise, percent a combination babysitters fill in of school, standpoint, for the children ability to use family of this appears daycare, camps, and the blanks. From the Mother's available when he is not working. full members clearly time she is basically and seems to possess the and others when necessary. to be inappropriate None in any particular. 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. The Father December 2010) Mother and Mother appears as remarkably willing continues Opinion before the the Father's ahd generally making household. All the·while, fact the Mother's between Mother's significance. role, a nuisance with this Meanwhile, in our earlier invading of herself her by everyone the his in his fixed belief that involved in this in what she views as almost her right tQ custody. We do not see this changing interaction described she continues has somehow "been abused". terms of denying in dealing on that course. her same patterns privacy, she (just as he did in restrained to continue of disregarding Court so that the parents actions the key to positive falls on the do not always Father despite recognize the his One change from the earlier hearing in the testimony was that she several 16 -36- times referred to the Circulated 04/29/2015 11:17 AM Father as a "good dad"·. This admission was not forthcoming from her earlier when we heard the matter Notwithstanding, recognition in 2010. what might seem to be some progress in her of the Father her actions speak louder than her words that the Father still stands accused of everything contained in our earlier Opinion. 14) The history of drug or alcohol abuse of a party or member of a party's household. Frankly, this issue (without more) would cause the Court grave concern were we required their Mother behaving positively) . The Mother, by her own descriptions, PTSD, and trauma from her 1985 motor vehicle at age sixteen. established impulsive behavior, documented While.the as the diagnosis disorganized with (let alone placing them there when the Father is suffers from ~DHD, accident to place these children both through the Mother's regard to consequences, and health records were on full display testimony are concerned. is almost cruel to th~ Mother and reviewing her actions In this regard, this Opinion in that we do believe to do none of these things and is, toward the children.· records, the on the part of the Mother which are in the mental where the children in the medical acting without thinking ADHD and PTSD were not in fact, well intended The fact this is our.belief, does not change the fact the Mother 17 she wants however, is simply unable to perform -37- Circulated 04/29/2015 11:17 AM in a manner which demonstrates situation, acceptance support of the Father, or of the present (lacking the first two) an ability on her own part to truly serve as primary residential custodian at this point in time together 15) The mental and physical member of a party's household. Consistent situation with the Father. condition of a party or with the above, it is apparent should be maintained. When everything not only does the Mother fail to demonstrate to serve as primary the current residential is considered, her own capacity care parent but there is a clear showing the children are doing well in the custody of their Father believe to change residential than disastrous stability In fact, we (babysitters notwithstanding). custody now would be little more since we would be removing from the children's lives. the main source of Accordingly, we affirm the current order in all of its particulars. In taking this action, we recognize Mother's present difficulty which she expressed the Father is limiting her Wednesday a cheerleading camp for this is regrettable, deliberately A.S. night visits by scheduling on Wednesday the Mother's at hearing that evening. to A.S. in detail the importance and how the combination -38- 18 While claim that this is something set up by the Father is simply untrue. the Father outlined cheerleading this continues the In fact, of competitive of changing teams Circulated 04/29/2015 11:17 AM and the coach changing nights evolved beginning this. s umme r A,S,' · s practices Wednesday night. his could into a situation work) he offered that reality, not get A.$ .. the A.S. Given Mother simply the choice as to by leaving it on her night. to simply this is seems the decision give the how there. It is whether any A; S, At hearing, with a different in about be In event that goes although the since would simple we invited to make It the. If we cannot Father to cheerleading for is spent. go to her A.s.· and we go cheer leading if the Mother the he gave We affirm that. children night, so if effect, easy enough evening. is empowering her evening cheerleading on her wish Father the Mother would of Wednesday or not A.S. whether It (because practices be removed from competitive Mother's to us than go to cheerleading. the Mother A,S, the Father night on scheduled to the Wednesday a different cannot were where cannot get her leave it to the Mother or whether an alternative she does not. no one solution, offered one. In closing, extremely difficult could take reality has very issues. as pleasure of her we noted Opinion · However, to write. in confronting own behavior little in .December control over we cannot when, 19 this is an No fact this Mother finder or Court with the harsh in fact, we are convinced it due change 2010, to her the fact -39- mental health that custody she Circulated 04/29/2015 11:17 AM opinions best are about the best interest and not in the of a mother who clearly needs to be affirmed feels she has been taken every interest of children opportunity. advantage of by everyone The best we can do for this affirm .that we believe her performance and actual demonstrated establish overwhelmingly lies with remaining intentions are good. abilities, that the best in the primary Father. BY THE COURT: 20 -40- Mother at is Her however, interest of the residential FILED: ajh involved and children custody of their
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