J-S25045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : C.D. : No. 1902 WDA 2015
Appeal from the Decree November 6, 2015 in the Court of Common Pleas of Allegheny County Civil Division at No(s): No. FD 09-008969-005
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED: July 14, 2016
Appellant, B.D. (“Mother”), appeals from the order entered October 6,
2015, which modified the parties’ March 1, 2010, amended custody order.
We affirm.
Mother and C.D. (“Father”) separated in 2009 and divorced in August
of 2010. Mother and Father have one child together, C.D. (born in March of
2008) (“Child”). On October 18, 2009, Father filed a petition for custody of
Child. On March 1, 2010, the trial court awarded Mother primary custody of
Child, and awarded Father partial custody. The order directed Father to
supervise any contact that D.D., Child’s paternal grandfather (“Paternal
Grandfather”), had with Child until Child reached the age of seven. J-S25045-16
On May 16, 2013, the custody order was modified providing that Child
would have no contact with Paternal Grandfather, pending an evaluation of
Paternal Grandfather by Robert Coufal, Ph.D.,1 because of allegations by
Mother that Paternal Grandfather had engaged in improper behavior with
Child. The alleged improper behavior consisted of Paternal Grandfather
allegedly showing Child naked adults on his cell phone, and allegedly
exposing himself to Child while they were swimming in a lake. On
December 10, 2013, the trial court permitted Paternal Grandfather to have
contact with Child as long as their visits were supervised by Father and a
court-specified family member.
On September 19, 2014, Father filed a petition for modification of the
custody order and requested shared physical and shared legal custody of
Child. On April 14, 2015, the trial court dismissed Father’s petition for
modification. On April 21, 2015, the trial court vacated the order of April
14, 2015 because it was entered in error. On May 18, 2015, Father
amended his petition for modification to request primary custody of Child.
On June 16, 2015, Mother filed an answer to Father’s petition. On October
14, 2015 and October 15, 2015, hearings were held on Father’s amended
petition. During the hearings, A.H., Father’s former sister-in-law; J.
____________________________________________
1 Dr. Coufal evaluated Paternal Grandfather and determined Paternal Grandfather did not have a sexual interest in children.
-2- J-S25045-16
Anthony McGroarty, Ph.D.; J.W., Mother’s boyfriend; D.D., Child’s Maternal
Grandmother; B.B, Father’s uncle; C.S., Mother’s brother; C.S., a school
resource officer; S.S., Mother’s sister-in-law; Mother; and Father testified.
By order entered November 5, 2015, the trial court continued the
parties’ shared legal custody of Child. In addition, the trial court awarded
Mother and Father shared physical custody of Child as follows:
a. Father shall have physical custody every other weekend from Friday at 5:15 p.m. through Sunday at 6:15 p.m.
b. Father shall have physical custody every Tuesday evening from 5:15 p.m. through 8:15 p.m.
c. Father shall have physical custody every other week from Thursday after school until 8:15 p.m. Said custody shall be exercised on the weeks Father does not exercise custody from Friday at 5:15 p.m. through Sunday at 6:15 p.m.
d. Mother shall exercise physical custody at all times not otherwise specified above.
e. Either party may exercise additional or alternative custody periods as the parties mutually agree.
Trial Court Order, 11/5/15, at 1-2 (unpaginated). During the summer, the
trial court directed that the parties “share custody on a week on/week off
basis.” Id.
On December 4, 2015, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b). The trial
court filed a Rule 1925(a) opinion on November 25, 2015.
-3- J-S25045-16
On appeal, Mother presents the following issues for our review:
1. Whether the trial court committed an abuse of discretion and/or error of law when it denied [Appellant] a [t]ransfer of [v]enue to a courthouse where [Appellee] is not an Allegheny County Family Court Sheriff’s Deputy[?] In the [trial c]ourt’s May 28, 2015 [o]rder, it was cited, “To seek a change in venue now certainly appears to be due to dissatisfaction with the result and hope that another forum would produce a different result [], prior to the trial even beginning[?]
2. Whether the trial court committed an[ ] abuse [of] its discretion/error of law when it honored [Appellee]’s request and denied [Appellant] discovery[?]
3. Whether the trial court committed an abuse of discretion/or error of law when it established a shared arrangement during the summer months is appropriate, where overwhelming witness testimony, [c]hild forensic interviews and testimony divulged significant safety concerns in modifying Child’s custody and granting unsupervised time with paternal grandparents[?]
Mother’s brief at 6.2
Our scope and standard of review in custody matters is as follows.
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to ____________________________________________
2 Mother did not present her first and second claims in her Rule 1925(b) statement of errors on appeal. Therefore, we find that Mother waived these issues on appeal. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.Super.2006) (holding that an appellant waives issues that are not raised in both his or her concise statement of errors complained of on appeal and the statement of questions involved in his or her brief on appeal).
-4- J-S25045-16
the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super.2012) (citation omitted).
Further, we have stated the following.
[T]he 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)).
With any custody case under the Custody Act, 23 Pa.C.S. §§ 5321-
5340, the paramount concern is the best interests of the child. In applying
the Custody Act, the trial court determines a child’s best interests through
consideration of all of the following sixteen factors:
§ 5328. Factors to consider when awarding custody
(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.
-5- J-S25045-16
(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.
(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
-6- J-S25045-16
another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor. 23 Pa.C.S. § 5328.
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).
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.[] § 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).
A.V., supra at 822-823. Instantly, the trial court set forth a detailed and
comprehensive analysis of each custody factor in Section 5328(a) in its
November 6, 2015 opinion accompanying the subject order, which we have
carefully reviewed in light of Mother’s issues on appeal. See Trial Court
Findings and Conclusions, 11/5/15, at 1-4 (unpaginated).
On appeal, Mother argues that the trial court committed an abuse of
discretion when it established a shared arrangement during the summer
-7- J-S25045-16
months in the face of what she characterized as overwhelming witness
testimony and child forensic interviews that revealed significant safety
concerns to Child. Mother’s brief at 6.
With regard to Mother’s allegations that Paternal Grandfather showed
Child naked adults on his cell phone and exposed himself to Child while they
were swimming in a lake, Dr. McGroarty testified that he relied on Dr.
Coufal’s evaluation of Paternal Grandfather, which concluded that Paternal
Grandfather did not have a sexual interest in children. N.T., 10/15/15, at
31. Dr. McGroarty further testified that he recommended Paternal
Grandfather was safe to be interacting with Child, and that Child appears to
be comfortable with his relationship with Paternal Grandfather. Id. at 32.
Dr. McGroarty testified that Child has a “good relationship with both of his
parents,” Father’s girlfriend, and Child was “not at risk when he was in
custody of [F]ather.” Id. at 32.
The trial court found that “it became clear to me that the Child was
constantly being reminded of this incident by [the] maternal side of the
family,” and the “paternal side of the family was pressing the Child to
recant.” Trial Court opinion, 1/11/16, at 6-7. The trial court concluded,
“Child has been placed in an extremely difficult situation by both sides of his
family and he is feeling the psychological effects.” Id. Moreover, the trial
court found that “[d]rastically restricting [C]hild’s contact with either side of
the family will only make matters worse.” Id.
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Furthermore, the trial court found:
Child is entitled to spend significant time with both parents. Although there is a significant distance between the parents’ homes, during the summer months, when the exigencies of travel to and from school are absent, there is no reason why Child should not spend equal amounts of time with both parents. This finding is also supported by the psychological evaluation of Dr. McGroarty, who opined: “Based upon the results of this evaluation, it is my opinion that [Child] is being well-cared for when he is in the custody of both parents and that his time with both parents is valuable [to] his development. I do not believe that his time with his father needs to be limited as it [sic] [Mother] is suggesting.”
Trial Court Opinion, 1/11/16, at 4 (citations omitted).
Upon careful review, we find that the totality of the record evidence
supports the trial court’s conclusions. In so holding, we give deference to
the trial court on its determinations regarding credibility and weight of the
evidence with respect to finding that a shared arrangement during the
summer months is appropriate. See C.R.F, supra at 443. We find no error
of law, and the trial court’s conclusions are not unreasonable in light of the
record. Accordingly, we affirm the trial court order.
Order affirmed.3
3 Appellant’s Motion for Modification of the Statement of Errors Complained of on Appeal is denied.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/14/2016
- 10 - ) Circulated 06/29/2016 02:36 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION
B.D.,
Plaintiff No. FD 09-008969-005
vs. Superior Court No. 1902 WDA 2015 CHILDREN'S FAST TRACK APPEAL C.D., OPINION JUDGE K. R. MULLIGAN Defendant
Copies by first class mail to: If) ('1 ... :. ,, . .. Plaintiff: ' ( N
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Counsel for Defendant: '"° L.J ..____. ..;
Michael DeRiso, Esquire Mackenzie Grills, Esquire Law & Finance Building 429 Fourth Avenue, Suite 1801 Pittsburgh, PA 15219
-1- i
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION
vs. Superior Court No. 1902 WDA 2015
CHILDREN'SFAST TRACK APPEAL C.D.,
Defendant
OPINION
K. R. Mulligan, J.
B.D. (hereinafter, Mother) and C.D. (hereinafter, Father) are the natural parents of
one minor child (hereinafter, the Child), (DOB 03/11/2008). Mother and Father separated
in 2009.
In October of 2009, Father filed for custody,.and the parties have been in various
forms of custody litigation throughout the Child's life. The most contentious issue in the
litigation involves allegations that the Child's Paternal Grandfather behaved
inappropriately with the Child on two occasions in the past: first, by allegedly showing
the Child pictures of naked adults on his cell phone, and second, by allegedly exposing
himself to the Child while the two were swimming in a lake. These allegations have been
consistently and vigorously denied by Paternal Grandfather.
Father's initial custody action was resolved by a Consent Order entered on March
1, 2010, in which Mother was awarded primary custody, with Father having partial
-2- physical custody; Father was to supervise any contact that Paternal Grandfather had with
the Child until he reached the age of 7. The March 1, 2010 Consent Order was modified
on May 16, 2013 to provide that the Child have no contact with Paternal Grandfather
pending an evaluation by Dr. Robert Coufal and further order of court; on December 10,
2013, Paternal Grandfather was permitted contact with the Child if he were supervised by
Father and a court-specified family member or another person as agreed to by the parties
in writing.
Custody evaluations were performed by Dr. J. Anthony McGroarty, and were
completed on March 5, 2015. The Court heard Mother's petition for a change of venue on
May 28, 2015, which was denied by Order dated July 7, 2015.1 Father's motion to amend
his Custody Petition to Primary Custody was granted on July 7, 2015, and a two-day trial
thereon was conducted on October 14-15, 2015.
On November 5, 2015, following a two-day custody trial, I made extensive
findings and conclusions which reviewed factors in the custody statute. I ordered that
legal custody of the minor child should be shared between Mother and Father; that
Mother should retain primary physical custody during the school year, but that the
parents should equally share physical custody during the summer months; that there
would be no court ordered restriction of the Child's contact with his paternal grandfather;
and that the Child should be enrolled in therapy and that the parents shall alternate in
taking him to appointments. (See Findings, Conclusions and Order of Court dated
November 5, 2015, attached hereto). Mother appeals my November 5, 2015 Order of
Court.
1 Mother did not raise any issue with this interlocutory order in her concise statement.
-3- The underlying Order of Court and the record upon which it stands speak largely
for themselves. Mother's specific complaints are as follows, each of which I shall address
briefly in turn:2
1. Thatthe evidence does not demonstratethat "a sharedarrangementduringthe summermonths is appropriate."See Mother'sStatementof ErrorsComplained of on Appeal, at paragraph1.
I found that the Child is entitled to spend significant time with both parents.
Although there is a significant distance between the parents' homes, during the summer
months, when the exigencies of travel to and from school are absent; there is no reason
why the Child should not spend equal amounts of time with both parents. This finding is
also supported by the psychological evaluation of Dr. McGroarty, who opined: "Based
upon the results of this evaluation, it is my opinion that [the Child] is being well-cared for
when he is in the custody of both parents and that his time with both parents is valuable
[to] his development. I do not believe that his time with his father needs to be limited as it
[sic] [Mother] is suggesting." (Dr. McGroarty's Report, Exhibit 9, p. 20).
2. Thatthe evidence does not demonstratethat Appellee is "slightly betterable to encourage and permitcontactbetween the child and mother."See Mother's Statementof ErrorsComplained of on Appeal, at paragraph2.
As set forth in my findings and conclusions, this was based on the fact that Father
acknowledges that Mother has been a good Mother to the child. Notwithstanding this
finding, I did note that the animosity which each party has for the other makes it difficult
for him/her to encourage contact.
2 Throughout her concise statement, Mother complains of my findings that various matters were established by clear and convincing evidence. While I understand that Mother is a prose litigant who may not be aware that "clear and convincing evidence" is a legal term of art, I must note that such language does not reflect the appropriate evidentiary standard for my findings of fact.
-4- 3. That the evidence does not support court's conclusion that alleged abuse was "in the past." See Mother's Statement of Errors Complained of on Appeal, at paragraph 3.
There were no allegations of any recent physical abuse. In fact, one of the
problems in this case appears to be Mother's dwelling on past abuse and communicating
this to the Child. I thoroughly analyzed this issue in paragraph 2 of my findings and
conclusions. With respect to Mother's and the child's allegations of anger outbursts, I
noted in paragraph 13 that Father and his family may express their emotions in temper
outbursts to which Mother is not accustomed. One of the reasons counseling was ordered
for the Child was to help him deal with these issues.
4. That the Court disregarded "clear and convincing evidence in Child's forensic interviews" regarding Father and paternal grandparents. See Mother's Statement of Errors Complained of on Appeal, at paragraph 4.
Contrary to Mother's assertions, the evidence from the forensic interviews
conducted in this case supports my conclusions. As noted in paragraph 2 of my findings
and conclusions, one of my concerns was that during the third evaluation, the Child
discussed Father's punching a headboard and acknowledged that he learned of this
through the maternal side of the family. I also noted Mother's fears as well as the Child's
fears (which I believe have been exacerbated by Mother). I also noted in paragraph 5 of
my findings that the allegations concerning paternal grandfather are being repeated by the
adults in Mother's family and that this has become the child's reality.
5. That the evidence did not demonstrate Appellee's willingness to protect Child from continued risk of harm or that unsupervised time with paternal grandfather was in the Child'!fl>est interest. See Mother's Statement of Errors Complained of on Appeal, at paragraph 5.
I did not make a finding that unsupervised time with paternal grandfather was in
the Child's best interest. On the contrary, I cautioned Father and the paternal side of the
family that unsupervised exposure to paternal grandfather may frighten the Child and that
-5- continuous questioning about the allegations is not appropriate. The Child will need to
work through these issues in therapy. What I did not do (based on the insufficient
evidence to substantiate the allegations) was place conditions on the Child's custody time
with his Father. See Fatemi v. Fatemi, 489 A.2d 798 (Pa.Super. 1985) (party moving for
restriction on partial custody must show that restriction is necessary to avoid detrimental
impact on the child and that content of the restriction manifests a reasonable relationship
between the restriction and avoidance of detrimental impact).
6. That the evidence did not supportCourt'sconclusions regardingincreasingly definitive allegations of the Child. See Mother'sStatementof Errors Complained of on Appeal, at paragraph6.
During the first forensic evaluation (Information to Accompany Forensic Interview
DVD, Exhibit F2, p. 2), it was reported that the Child made no disclosure. During the second
forensic evaluation, when the interviewer asked the Child why he was there, he responded,
"Because Pap-Pap[__ ] showed me naked pictures. DONE." When asked to explain
everything about this incident, the Child began talking about Pap-Pap pulling his pants down
in the lake. The Child said that this incident and the naked picture incident both took place
when his Father was "peeing behind a tree." The Child repeatedly said "that's all" after every
question. During the third forensic interview, the Child described what they were eating,
what he was doing and listed numerous relatives who were present when this incident took
place.
It became clear to me that the Child was constantly being reminded of this incident
(or these two incidents) by the maternal side of the family. It also was clear that the paternal
side of the family was pressuring the Child to recant. My conclusion was that the Child
needed to be enrolled in therapy to work through these issues.
-6- In summary, this child has been placed in an extremely difficult situation by both sides of his
family and he is feeling the psychological effects. Drastically restricting the Child's contact with
either side of the family will only make matters worse. The Child needs to work through these
issues with a therapist.
For the foregoing reasons, the November 5, 2015 Order of Court should be affirmed.
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,ac ••.•,.~ 1 nm••• FAMil..Y DIVISION
Plaintif( No. FD09-8969,;,005 vs. . FINDINGS;CONCLUSIONS ., -and ORDER OF COURT . . : .: JUDGE K. R. MULLIGAN
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..: · Counsel for Defendant .. ~ )'tichael DeRiso, Esq . · i!-· Law & Finance Bldg. 4l9 Fourth Avenue ,, Suite 1801 I· j; . · Pittsburgh,P~ 1S.~i9 1
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11 · . -. ) .
IN THE C~URT OF COMMON P~AS OF ALLEGHENY COUNTY, PENNSYVLANIA
CI t . .) FM'.flLY DIVISION ) Plaintiff ) No. FD09-00a969-005
_s ) vs. ) . ). ~n, .. ) }: . -Defendant ) .
FINDINGS AND CONCLUSIONS . L~ . ·. AND ~OW, th~~ q.ay of November, ·2015~ after trial, the court he~~Y reviews
the factors set forth in 2l Pa. C.S.A:. §5328.as follows?
1. . Both. p~ies say that they wish to .encourage and permit frequent and continuing
contact between C-. and the other parent, However, each pany has· such animosity . . to~ard the other that it :is difficµlt for him4tet to ~co~e contact .. Ad~tj.onall~. the issue
of paternal grandfather has become so prevalent in this custody case that it has become a ~atter of principle for each party. NotwithstaQ.(ling the· above. findings, the court· finds that
as between father and mother,' father appears ~lightly better able to encourage and permit . . .. . contact between thechild.and mother. Father app.ar~ntl~·does acknowledge that mother has
been a good mother to the child. . . 2. Mother alleges that fatber was abusive in _the past, · While this may well be
accurate (the psychologist said that father admitted to .it)~ this again has become an issue in
which (:91 has become involved. The court certainly recognizes that any violent, abusive . . behavior by Father was 'improper (and may well have provided the basis for Mother's
.. ..:...· . -~~--~. -- . -----·· .· I.,,• < actions); it is important, for Mother to move beyond her .sense "pf herself as a victim and it is .
a: victim, . The. court was :very •
concerned that •
. c·· even more 'important for. he~ • • not 'to' make cllll feel '
. . - like '
. told the forensic evaluator that father bad. punched the· headboard
when his mother was sleeping. and acknowledged that _he only learned of -this through the o • • I
maternal side of the family. The court does not find that clllwill be subjected to physical
abuse in Father's custody. However, the court recognizes that both mother and cllllhave
a significant fear 'of abuse at the hands of father and his family. The court finds that both parties are capable of providing adequate physical safeguards and supervision of the child.
2.1 There have been numerous investigations by Child· Protective Services in this
case, none of which has resulted 111 any long term involvement or indicated childline.
3. Mother has performed the majority of the parental duties on behalf of C-up
. to this point. However there is no indication that father is not capable of perform~ng these
parental duties.
4. ell has begun school in the Moon School District and appears to be doing
well there. Given the amount of the conflict around the child in each of the families, it is
important that his school district remain consistent. In addition, mother and clll9 would believe that the school district where father resides would favor father; ·
5. Unfortunately, the extended family in. this case has become an issue, Mother .
. and clll are convinced that patemafgrandfather exposed hurtself to-thechild ~d exposed ·-··-·---. . :··- -·
the child to inappropriate photos. Other than · the child's statements,· there is no
corroborating evidence of this. Additionally, it appears that the child's statements about this
incident which took place when he was very young have become more and more definite throughout the years. This would seem to demonstrate. that the alleged actions of paternal
~· ... - .. - -- - ·~--'-'-----'-- ! ·)
grandfather are being repeated by the adults in mother's family and that this has become the child's reality. What father does not understand is that his challenging this is making the
child feel like ~ 'liar and the court does not find that the child is a liar. Th~ court finds that
the reported incident with-paternal grandfather has become c•·s reality: Because there is insufficient evidence to substantiate· . the allegations with respect to paternal grandfather, •\ . ')• the- i:"
court will no~ order that the child not have contact with paternal grandfather. However,
father and the paternal side of the family are cautioned th.at unsupervised exposure to
paternal grandfather may frighten the child and continuous questioning about his allegations
is not appropriate. The child will need to work through these issues in therapy. With
respect to the remaining· paternal family members, other. than their efforts to convince the
child that paternal grandfather is "inno~nt", they _provide a benefit .to C.. Similarly,
with respect _to the maternal family members, other than the focus about the alleged incident ·
with paternal grandfather, they appear to be a beneficial relationship, . . 6. There are no sibling relationships in this case. Mother's current. significant
other does have a child and it is likely beneficial to C. to have contact. with other
children.
7. The child expressed a strong preference in favor of mother and against father .
. However, . this apPe~ed to be based primarily on the child's perception that he is being
press~ by ~a~er to "lie" about paternal grandfather .. If this is true, it undoubtedly places
significant pressure ~n ca. This is particularly true because C. truly believes that the
incidents to which he refers took place. Further, it is very clear the child is very attached to
· mother and wants to please her and to do 'what she wants. While considering the child's
_ ___, _.....:. ~~- .... . . testimony as evidence of his _feelings and pressure that he is under, the court w~II not place a
great deal of w~ight on his expressed preference.
8. Mother would argue that she -h~s not '.~tempted to tum C•. against rather but
is simply insuring that reasonable safety measures are necessary to protect him from harm
caused by paternal grandfather. However, mother appears to be very willin~ to misinterpret
and believe the worst about any aspect of father's family and about ap~in~ that has todo
with father and no doubt th.is has been' communicated to c .. 9 .. '· With respect to Factor 9, both parties are likely to maintain a loving, stable,
consistent and nurturing.relationship with the child. As stated -ilifra c8 is significantly
bonded to mother.
10. · Mother has primarily provided for the daily physical, emotional, 'developmental, \
educational and special needs of the child to date although there is· no reason to find that
father could _not do so-as well.
11.. The significant distance between the residences of the parties · is a concern.
Father is seeking primary or shared custody and requesting-that c··be enrolled in his
school district. As stated above, the consistency of the school district is likely an important
factor for this child. Therefore, a shared arrangement during the school year is not feasible.
However, a shared arrangement during the summer is appropriate.
12. Mother has demonstrated her availability to care for. 'the child or make
appropriate. child care arta:ng~ments. Father testified that he was .able to do -so but his
testimony was vague and it was not clear wh~t specific arrangements he would make. .
13. The level of conflict between the parties and willingness to c~operate is a
significant problem in this case. Again, mother ~oul~ state that this is because of her efforts to protect the child from abuse burthe court.finds that mother has in many ways exacerbated . .
the conflict -. I~ 'appears clear that father and his family may express their emotions in temper
outbursts and this may be something that.mother i's not.aecustomed td. As contirmed by the
psychological testing, mother's mability to see any fault with respect- to herself does not help .to .alleviate conflict because she will take no responsibility fQt th~ situation. It is dear that
t9 is being brought into this conflict by both parties .. At this point in time. he feels that
father is challenging his veracity and this is detrimental to the .child's relationship with
father: The videotaping of the custody .exchanges by the paternal side of the family has
. exacerbated not reducedconflict ~d involved the child In the . distrust between the families.
14. There's no evidence of drug or alcohol abuse.
15. There's no .evidence of any mental or physical condition "of either party or
party's household. .
16. With respect to Mother's contempt petition, although Father's· refusal to allew
C.. to call Mothe~ any time he wants constitutes a technical violation of the order, the
court finds that given the conflictlial relationships in this" case, this ·:fan~ge should be
eliminated. N~ sanction.s will be imposed at thi~ time. However, this finding should be noted in lit~ event of a violation in. the future.
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