J-A03011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.E.C., JR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : K.A.S. : No. 1566 MDA 2019
Appeal from the Order Entered August 28, 2019 In the Court of Common Pleas of York County Civil Division at No(s): 2018-FC-001498-03
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED: APRIL 14, 2020
K.A.S. (Mother) appeals from the trial court’s order awarding primary
physical custody of the two youngest of the parties’ three children to J.E.C.,
Jr., (Father) subject to Mother’s right to partial physical custody. After careful
review of the parties’ briefs, relevant case law and the record on appeal, we
conclude the Honorable N. Christopher Menges has properly disposed of
Mother’s issues on appeal, as set forth in his Pa.R.A.P. 1925(a) opinion.
Therefore, we affirm the trial court’s order based on Judge Menges’ opinion.
Mother and Father are the parents of three (3) minor sons, W.C., born
in November 2002 (age 17), N.C., born in November 2005 (age 14), and A.C.,
born in June 2008 (age 11). The parties separated in 2014. At that time,
they resided in Maryland.
On June 2, 2017, the parties entered into a consent order in Maryland
granting the parties shared legal custody and granting Mother primary J-A03011-20
physical custody of all three children, subject to Father’s partial custody rights.
Mother relocated to York County, and the order was transferred to York County
on or about July 25, 2018. In 2018, Father relocated to Alabama.1
On February 27, 2019, Father filed a “Petition for Modification and
Relocation and Contempt.” In his petition, Father sought primary physical
custody of the parties’ two younger children, N.C. and A.C., citing concerns
pertaining to the children’s education and Mother’s inability to control the
children and assure their school attendance.
Trial was held on August 16 and 21, 2019, during which both parties
testified at length concerning the children’s education, attendance records and
steps taken to rectify any problems they were having in school. The court
interviewed the three children during the course of the proceedings. All three
children expressed a clear preference to remain in York County with Mother.
N.T. Custody Trial, 8/16/19, at 122, 127, 145.
Both parties agree the oldest son, W.C., should remain in York County,
as he is the expected valedictorian of his high school class. N.C. however,
was diagnosed with ADD/ADHD and had various problems in the first year of
middle school as well as with several teachers. N.C.’s school implemented a
____________________________________________
1 We note these the trial court’s Rule 1925(a) opinion states Father relocated in 2016, which is a typographical error. At the hearing, Father testified that he moved in 2018.
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5042 plan, which helped, but it took the bulk of the school year to resolve the
issues he had. Mother testified that N.C.’s difficulties had a trickle-down effect
that caused A.C. to be late for school or the children would miss school
altogether. Despite this, A.C. excelled academically and he was invited to
participate in an advanced math program for the coming school year. Id. at
73. During the trial, W.C. testified that he believed his brothers should remain
in Pennsylvania with Mother. Id. at 122. Father testified to receiving text
messages, which Mother acknowledged, regarding N.C.’s violent behavior,
which Mother could not handle. Id. at 58; N.T. Custody Trial, 8/21/19, at 80-
81.
The court entered an order on August 28, 2019, awarding the parties
joint legal custody. The order also awarded Father primary physical custody
of the two younger children, N.C. and A.C., subject to Mother’s rights of partial
physical custody. W.C. remained in Mother’s primary physical custody. Mother
filed this appeal. Both Mother and the trial court have complied with Rule
1925. ____________________________________________
2Section 504 of the Federal Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (1985), covers qualified students with disabilities who attend schools receiving federal financial assistance. To qualify for protection under Section 504, a student must be determined to: (1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such an impairment; or (3) be regarded as having such an impairment. Section 504 requires that school districts provide a free appropriate public education (FAPE) to qualified students in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities.
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On appeal, Mother raises the following issues for our consideration:
(1) The trial court erred as a matter of law and/or abused its discretion in separating the three (3) minor children in the absence of compelling circumstances warranting the separation of siblings, particularly as the three (3) children expressed a preference to remain in Mother’s primary physical custody.
(2) The trial court erred as a matter of law and/or abused its discretion by awarding Father primary physical custody of the parties’ two (2) youngest sons and in ignoring the long-established, continuing relationship and bond between Mother and the three (3) children as the primary custodial parent since the parties’ separation.
(3) The trial court erred as a matter of law and/or abused its discretion in dismissing the clear preference expressed by the three (3) minor children to remain in Mother’s primary physical custody and in failing to afford the children’s preference the appropriate weight in its decision to separate the siblings and transfer custody of the parties’ two (2) youngest sons to Father who resides in the [s]tate of Alabama.
(4) The trial court erred as a matter of law and/or abused its discretion in its analysis of the factors set forth in 23 Pa.C.S § 5328(a) (relating to custody factors) and 23 Pa.C.S. § 5337(h) (relating to relocation factors) and, therefore, erroneously determined that Father should have primary physical custody of the parties’ two (2) youngest children and in granting Father’s request for relocation to the [s]tate of Alabama.
Appellant’s Brief, at 6.
This Court reviews a custody determination for an abuse of discretion.
In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse
of discretion “merely because a reviewing court would have reached a different
conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial
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court abuses its discretion if, in reaching a conclusion, it overrides or
misapplies the law, or the record shows that the trial court’s judgment was
either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” Id.
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 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.
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted).
The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court
to consider all of the Section 5328(a) best interests factors when “ordering
any form of custody.” 23 Pa.C.S. § 5328(a) (1)-(16). In reaching its decision
to award Father primary physical custody of the two younger children, the trial
court analyzed each factor as it pertains to the circumstances of this case, and
set forth his reasons why awarding Father primary physical custody of the two
youngest children was necessary to promote the children’s best interests and
permanent welfare. Judge Menges carefully evaluated the custodial
environments of each parent, and thoroughly considered which placement was
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in the overall best interests of the two younger children, N.C. and A.C. See
Trial Court Opinion, 10/11/19, at 10-14 (court noted Father’s testimony that
the environment in Mother’s home was “chaos,” that Mother expressed
concern about N.C.’s violent behavior toward her and her inability to manage
him physically, that he “keeps locking me out of the house[,]” that lack of
impulse control is part of N.C.’s ADHD and Mother has not been able to teach
him impulse control, while Father has had no significant problems with him
during his 8 weeks in summer; court also found particularly disconcerting
Mother’s failure to follow through on N.C.’s need for recommended therapy,
including partial inpatient hospitalization; court stated in its analysis of factor
six that it was “with great hesitance and pause” that it was separating the two
younger kids from oldest brother, but noted the two younger boys were more
bonded and the oldest was leaving for college in two years; court also found
N.C.’s preference for staying with Mother was based on the “lax” environment,
and, finally, court noted factor one (which party is more likely to encourage
frequent and continuing contact with children and other party) and factor
eight (attempts to turn child against other parent), both weighed in favor of
Father).
Judge Menges determined that awarding Father primary physical
custody of N.C. and A.C., and allowing Mother to retain primary physical
custody of W.C., was in the children’s best interests. We agree with the court’s
assessment that compelling circumstances existed in this case warranted
separating the children.
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We also agree with the court’s determination that this was not a
relocation, as neither parent was proposing to change their residence. See
Trial Court Opinion, supra at 18. The parties were operating under a consent
order, wherein Mother had primary physical custody of Child. The issue here
was whether primary custody of two of the children should be changed from
Mother to Father. Cf. D.K. v. S.P.K., 102 A.3d 467, 477-78 (Pa. Super.
2014) (“[A] custody case where neither parent is seeking to relocate and only
the children would be moving to a significantly distant location if custody
shifted from one parent to another does not per se trigger section 5337 of the
Child Custody Act.”). Rather, any relevant relocation factor not already
incorporated by the court's consideration of the custody factors may be
addressed under the catchall section 5328(a)(16) (any other relevant factor).
Judge Menges properly weighed the statutory custody factors and
clearly articulated his considerations in making the custody award. The
evidence of record supports his decision, and we do not find that his judgment
was manifestly unreasonable or the product of partiality, prejudice, bias or ill
will. In re K.D., supra. We find no error or abuse of discretion. J.R.M.,
supra. We rely upon Judge Menges’s opinion to affirm the custody order, and
we direct the parties to attach a copy of that opinion in the event of further
proceedings.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 04/14/2020
-8- Circulated 04/03/2020 Circulated 04/02/2020 04:42 01:41 PM PM
RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2018 11:48 York Co Prothonotary 71? 771 4829 NO.327 0002
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, P NNSYLVANIA FAMILY DIVISION
No. 2018-FC-001 98-03 JI E. C , JR., Plaintiff vs. CZ
Action in Custod K A. S , Defendant Lo r:4 CD 7I MEMORANDUM OPINION IN SUPPORT OF ORDER PURSlikNT TO RULE 1925(a)(2)(ii) OF THE PENNSYLVANIA. RULES OF APPELLATE PROCEDURE
AND NOW, this 10th day of October, 2019. the Cowl is in rece pt of Mother's
Notice of Appeal and Concise Statement of Errors Complained of Pursuant to Rule of
Appellate Procedure 1925(b) filed on September 26, 2019. Tho Court loreby reaffirms
its Order entered on August 28, 2019.
STATEMENT OF FACTS AND PROCEDURAL 111S7 PRY
Plaintiff, J E. C , Ir,,.("Pather") and Defendant, L A. S
ii("Mother"), are the natural parents of W C , born Novem er 2002
("W.C."), N C , born November , 2005 ("N.C."), aria A
C born June , 2008 ("A..C.").
The parties separated in spring of 2014. A stipulated order for 47stody was
entered by the parties on June 2, 2017 in Baltimore County, Maryland ( ransferred to
York County, Pennsylvania on or about July 25, 2018), and provided th t Mother had RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2019 11:48 York Co Prothonotary 717 771 4829 NO.327 4003
primary physical custody of the children, subject to Father's rights Op al physical
custody on alternating weekends and extended periods of time over the summer. Father
moved to Alabama in 2016 and Mother moved to York County, P011320 lvania in2018,
On or about February 27, 2019, Father filed a Petition for Mod! cation;
Relocation and Contempt An Interim Order for Custody, Pending Tri I was entered on
April 2, 2019, which provided the patties with shared legal custody of t e children, and
Mother with primary physical custody, subject to Father's rights of p 41 physical
custody of N.C. and A.C. from June 10, 2019. through August 4, 2019, nd custody of
W.C. from July 21, 2019 through August 4, 2019.
A custody trial was held on August 16, 2019 and August 21, 20 9. Asa result of
the custody trial, the Order subject of this appeal was entered on Augur 28, 2019. The
said Order provided the parties with shared legal custody of the childr and Father with
primary physical custody of the parties' two (2) youngest children, and A,C,, and
granted Father's request for relocation to Alabama. The parties agreed at the oldest
child, W.C., soon would be 17 years old and was going to stay in Moth is primary physical custody in Pennsylvania.
It is undisputed by the parties, and the evidence supports a finding that the parties'
oldest child, W.C., is doing well in Mother's primary physical custody. In fact, he is
ranked I out of 284 in his class. kleg Tr, August 21, 2019 at 5. During the in-camera
interview with W.C., he stated he understood that he would be staying h Mother's 2 RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2013 11:46 York Co Prothonotary 71? 771 4628 h0. 27 *004
primaiy custody and wanted his brothers to remain in Mother's prima custody as wall
In fact, all three (3) of the children expressed a desire to stay in Mother s primary
physical custody, When asked by the Court how he felt his brothers m ving to Alabama
would impact their relationship with one another, W.C. responded that believed that it
would have a negative impact on their sibling bond. 1- rte' Tr., August 6, 2019 at 122.
When speaking about his younger brothers, N.C. specifically, W,C. described him as
"just a difficult sort of kid." it at 116. Following the in -camera intery ew with W.C.,
the Court interviewed N.C. who admitted that he had difficulty with sc ool this past
school year. He Mated that the difficulties were caused by "disagreeme ts" and a
"conflict ef interests" with his teachers, specifically his science teacher and math teacher,
due to his ADliD. La: at 127-128. Lastly, in -camera the Court intervim ed the youngest
child, A.C. Like his older brothers, he echoed the desire to stay in Mot ier's primary
physical custody. He further stated to the Court that N.C. had difficult waking up for
school in the morning because, he stayed up until sometimes 3;00 a.m. 1 ying video
games or watching movies. g at 144. The parties both testified that N.C. ended the school year with a cumulative 01)A
of 81:5 and passed to the fith grade; and that A.C. had been accepted int, an accelerated
math program and passed to the 5th grade. The parties also agreed that C,'s academic
and attendance issues were worse than the previous sohool. Father t ed that in
October of 2018, the Truancy Officer for Spring Grove School District ontacted him
3 RECEIVED 10/11/2019 11:50AM 7178482777 BLAKE & SCHANBACHER le/it/nis 11:4B York Co Prothonotary 71? 771 4629 NO.527 #005
becauSe A.C. had missed almost a week of school and N.C, had numero s
unexcused/unlawful absences from school. at 14. The progress report for first
marking period for A.C. indicated that he had a total of 13 absences (9 xcusod, 4
unexcusul/unlawful) and 3 tardies. a at 15, A.C.'s teacher noted on e progress report
that there were numerous missed homework assignments. a at 16. A. 's progress
report for the final marking period indicated that A.C.'s total absences ere 18.5 (12.5
excused, 6 unexcused/unlawfii1) and 12 tardies. Id, With respect to N C., his progress
report for the second marking period indicated he had 3 excused absene 5
unexeuseclAmlawful absences, and 3 larches. a at 17. It was noted on .C.'s second
marking period progress report that he was capable of doing better qua work than
what he was generating, homework was not being completed, and he w s having
behavioral problems. Id. Father testified that N,C, was eventually cite for violating the
school's compulsory attendance policy. a at 21. Additionally, during is testimony,
Father described the environment at Mother's house as being "chaos". at 22. Father
stated that he has received numerous texts and e-mails from Mother sa ng that she could
not get N.C. up in the morning to go to school. Id. Father further state that Mother has
expressed concerns to him regarding N.C.'s violent behavior towards flier, and that
N.C. was getting too big for her to manage him physically. a at 57. e youngest
children, N.C. and A.C, Spent the majority of the summer with Father Alabama.
During that time, Father testified that he had no problems getting the c ldren up and to RECEIVED 10/11/2019 11: 50Atil 7178482777 BLAKE & SCHANBACHER 10/11/2019 1149 York Co Prothonotary 717 771 4629 H0.327 4006
day camp during the week while he was at work. Lt at 30-31. Additio ally, Father made
sure that A.C. read for at least 15 minutes most nights and logged his re ding progress.
at 45. It is noted that Mother in her testimony raised concerns that a cording to
A.C.'s reading log, the number of pages being read each entry seemed 11 w in her opinion.
Hr'g Tr, August 21, 2019 at 7-B.
Mother testified that she lost her job in late October of 2018 due to frequently
being late. a at 86. Mother stated that while she was looking for empl yinent, at the
time of the custody trial, her only source of income was child support, a imony, and a
portion of Father's military pension. a at 37. Additionally, in October of 2018, N.C.
was taken to crisis care. at 49. It was recommended at crisis that N. . be partially
hospitalized, or as an alternative, receive intensive outpatient therapy. at 55. As of
the date of the hearing, N.C. had only attended five (5) therapy sessions, because there
was not access to any additional services. Li at 56. With respect to N. 's treatment,
Mother stated could have taken him to York Hospital and I could hay told them that
he was having severe emotional distress and issues and they would have put him in on a
psychiatric hold so he would have gotten additional services, I didn't fa I like it was
appropriate to do that." a Further, Mother testified that NC, was on a ailing list for
months to see a psychiatrist or counselor. a at 57. Mother stated that i was
recommended that N.C. do a partial day program, but the only programs that would take
the child's insurance were in Hershey and Baltimore. ld. Mother stated it was not RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2013 11:49 York Co Prothonotary 717 771 4929 110.321 #ea?
feasible for her to drive him there and pick him up everyday, because s e was working.
Id
Regarding the issues that N.C. was having in school, Mother de cribed the
science teacher's behavior towards N.C. as "egregious."r at 59. Mot tar testified as to
several meetings with N.C.'s teachers, and she felt like "they were gang ng up on him
and blaming him for his learning disability." a at it. The Court was presented with evidence of N.C.'s behavioral pro lcms in
Mother's home.
"THE COURT: Ma'am, I have a question. That sa e exhibit Q, the page after Attorney Hunter just re erred to, I see .
where I think you texted `[N.C.] i. getting out of control with his behavior because won't let him go to a friend's house or give his con puter back because he's grounded, He keeps 1 eking me out of the house. Slamming doors and of icr objects, throwing things and using extrem ly crude language.' Was that April 26th, 21 199
THE WITNESS: Probably.
THE COURT: So he went to crisis in October of 018., 6 months later this was still that bad.
THE WITNESS: That was, believe it or not somew at of an improvement.
THE COURT: Ne's locking you out of the house.
THE WITNESS: Yeah. He has a hair trigger, If he ets mad about something, he blows up like that : I d then usually
within about 20 minutes he calms own and 99.9 percent of the time he will actuall be the one to 6 RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2019 11;49 York Co Prothonotary 717 771 409 H0.327 $000
come to me and apologize for his ehavior. He's definitely remorseful and undcrsta, ds that his behavior is inappropriate. But I an told that impulse safety is part of the AXED and thit he just blows up and takes him longer to get control over his emotions and his behavior than otIlcr people.
T COURT: Okay. Go ahead," ,ld, at 80-81.
Mother testified that in May of 2019, she began researching residential treatment
programs for N,C, due to his behavioral problems at home and that she 4iscussed this
treatment option with Father. M. at 6Z. Additionally, Mother testified cis to other
remedial steps she was taking to correct some of the behavioral problerris that N.C. was
displaying, such as a consultation with a learning center for academic st port services;
and applying a more restrictive setting to the children's electronic devic s. 1. at 9, 74- 75,
ISSUES ON APPEAL
On September 26, 2019, Mother filed her Concise Statement of rrors
Complained of Pursuant to Rule of Appellate Procedure 1925(b), which provided the
following:
1. The trial court erred as a matter oflaw and/or abuge, its discretion in separating the parties' three (3) minor children in 1h absence of compelling citettinStanceiwamanting the separation of particularly as the three (3) children expressed a preference to remain together to Mother's primary physical custody.
2. Thetrial court erred as a matter of law and/or abused its discretion by awarding Father primary physical custody ofthe parries' two (2) 7 RECEIVED 10/11/2019 11:50AM 1178482777 BLAKE & SCHANBACHER 10/11/2019 11:49 York Co Prothonotary 717 771 4629 NO.32? #000
youngest, sons and in Ignoring the long-establi.shed,. c ?? thru ing relationship and bond'between Mother and the three 3) children as the primary custodial parent since the parties' separi tion,
3. The trial court erred as a matter of law and/or abuse its discretion in dismissing the clear preference expressed by the thre (3) minor children to remain h Mother's prim) physical oust idy and in failing to afford the children's preference in appropriate we hi in its discretion to separate the siblings and iran.Tfer auto of the parties ' two (2). youngest sons to Father who resides in the St to ofAlabama.
4. The trial court erred as a mailer of law and/or abuse its discretion in its analysis ofthe factors set forth in 23 Pa. CS. §53 a(a) (relating to the custodyfactors) and 23 Pa, CS. §:5337(h) (retail- g to the reocation factors) and, therefore. erroneously deter? ined that Father should have prtinaty physical custody of the parties o (2) youngest children and in granting Father's request far relocat n to the State of Alabama.
DISCUSSION
An abuse of discretion is more than just an error in judgment an , on appeal, the
trial court will not be found to have abused its discretion =leas the reoo d discloses that
the judgment exercised was manifestly unreasonable, or the results of p ttiality,
prejudice, bias or ill -will. Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001)
(internal citations omitted).
An appellate court has broad review in custody oases, and tries, i not bound by
the deductions or inferences made by a trial court from the facts found, or must the
appellate court accept a finding of fact for which there is no competent videneeto
support it. Piton v. non, 492 A.2d. 59, 59-60 (Pa. Super. 1985). Howc vor, this broad RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2019 11:49 York Co Prothonotary 717 771 4829 NO.327 0010
scope of review by the appellate court was never intended to nullify the act finding
function of the trial court. AL,
1. The trial court erred as a matter of law and/or at us d its discretion in separating the parties' three (3) minor children it the absence of compelling circumstances warranting the separactiot of siblings, particularly as the three (3) children expressed a preference to remain together in Mother's primary physical custody.
It is denied that the Court erred as a matter of law and/or abused is discretion in
separating the parties' three (3) minor children. It is further denied that here was an
absence of compelling circumstances warranting the separation of the o ldren.
"[T)he cardinal concern in all custody matters is the best interest nd permanent
welfare of the child, in this case, children. It has always been a strong p hey in our law
that in the absence of compelling reasons to the contrary, siblings shoul be raised
together whenever possible." Ld.at 6D. "The requirement of showing Et f 'compelling
reasons' might appear synonymous with the `clear necessity' requirerne t of the Juvenile
Act...lf one is 'compelled' to do something, it might be said that [it} is etossary' to do
it. Moreover, the term "compelling' is defined as 'tending to convince o convert by or
as if by forcefulness of evidence.' "Id. The question then becomes whe her it was
necessary to separate the children and whether the evidence was force in that regard.
Id The Court's decision to grant Father primary physical custody o the parties' two
(2) youngest children, N.C, and A,C., was necessary to promote the.best interest and RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2019 11;49 York Co Prothonotary 717 771 4629 H0.327 4011
permanent welfare of those particular children, because evidence was presented at the
custody trial indicating that Mother could not control the parties' naidell child, N.C., and
the educational, mental/emotional, and physical needs of the parties' t (2) youngest
children were not being satised in Mother's care. The Court stated its tidings and
reasons for believing that the best interest and permanent welfare of the hildren would
be promoted by the Order of August 28, 2019 in open court, on the reco d, pursuant to
the custody statute at §5328, as follows:
"The first factor is which party is lilt y to encourage and permit frequent and continuing contact betwe the children
_pattern a and the other party. We find this factor in favor o clear that mother has. engaged in a children to have a good and healthy relationship no father since it is encouraging the ith the father.
The second factor is present or past abuse and there was a stipulation that there had been no abuse. So that i. not a factor.
Factor 2.1 is involvement with protective erviees and there was no evidence of that and therefore that is not factor.
Factor three, the parental duties performer by each party on behalf of the child. This is at best a mixed bag. F er has not for three years or maybe not quite that long, has not r at least the last year or two bad the cbildron during school time d mother has. However, the parental duties go beyond nurturing children and providing for them and making gore they get to w ere they need to .
go and so -forth. Parental duties also refers to soya c sense of discipline and fostering and teaching children so control. Quite candidly mother has done a poor job of that. Tb e is at least one text or e-mail we saw in the exhibits that we look d at on Friday in which mother conceded that her house was chaos We saw a text today where in April just a few months or so ago other was texting father that Nate is out of control and is lo c1,ing her out of her own home. Mother provides many excuses fo why this is 10 RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2018 11:49 York Co Prothonotary 717 771 4628 H0.327 #012
going on and that she has drop her best and of co rse the Court believes that on some level she has done her best, But the Court believes mother is incapable of providing the disc Ono these children need, The Court was very troubled at tod y's testimony where mother tied to explain away the text in Ap 112019 where Nate was destroying furniture and locking her out of the home and she gave as reason for that Nate'S impulse safety hick is a part of his ADM). Impulse safety is why many murders lappen. Part of a child growing up is to learn to control his or her h ipulses. It was 'Iota 5, 7 or 10 -year-old. This is a 13 -year -old au1d the Court is most troubled that mother has not been able to teeh this child any impulse safety control. We heard from father and ather's fiance that father had no substantial problems with Nate a the eight weeks ho had him this past summer, The Court is also most - troubled by mother's haying the child go to crisis :s au intervention in October of 2018 but could not get the child to ny therapy in spite of the fact that partial hospitalization was th recommendation, mother could not get the child t any therapy for almost six months- four months really. At any ra e, she gave the Court all kinds of reasons and excuses including ut not limited to the lack of insurance coverage. Maybe the Court s old fashion but if my child or grandchild bad to go to crisis and p rtial hospitalization was recommended, I would find a me way to pay for that out -of any pocket regardless of 'mina= overage, We just find mother's lack of getting this child to any tiler py unbelievable. That is unfortunately reinforced by the fact that o looked at the N
April 2019 text by mother where the same child 1 ate was locking her out of her house and although therapy had sta ed by then according to mother's testimony, she also test-J.6e there has only been five sessions from February 2019 to the pre ant in August of 2019. In any event, the parental duties in one sen a have been performed well by mother, in another sense are a rely laoldeg and need a different parent to perform those duties an thereforo we find this factor heavily in favor of father.
Factor four, stability and continuity in the children's education, flimily life, and community life, Both arties had really exhibited a fairly high degree of stability. Father ad some instability over the last several years as to where he lived but
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mother just lost her job and her ability to support ersolf seems a bit suspect. In any event, we find that a neutral fa tor.
Factor five, the availability of extended fa ily, Unfortunately, the Court even has to find this fao or in favor of father. Mother's mother and brother and family li a in Georgia and father arranged for the children to visit with their arnily in Georgia during his time of custody. That tells the Court th t the father values not only his extended family but mother's xtended family highly and enough to take some of his time of his summer custody schedule to make sure these children see mother' family in Georgia.
Factor number six is the children's sibling relationships, This is another tricky factor. The Court is fully e gnizant of the fact that the court is separating these two children from their oldest brother [W.C.). It is with great hesitance and pat e that the Court does that. But it is very obvious that [W.C.] will e going to collage in not only two years, about a year and th ac -quarters and therefore that will get severed somewhat then as way. The Court is counting on the parents to try to do everything ey can so that [W.C.] and his brothers spends some time with e oh other on the summer vacation and with the family on some of le breaks. In any event, the Court did find that [N.C.] and [AL.) a p closer in age and closer bonded than the two younger children e with [W Again, [W.C.] is a completely different kind pfc ild, He's a nerd. He's number one in his class. He's very studious, las concrete plans for the future. And this does set him apart s meWhat from the other two younger children.
Factor seven, the well-reasoned preferenc of the children. Again, is with great pause. This Court is orderin a schedule that is contrary to the children's stated preference. All t ee children stated they wanted to stay in Pennsylvania with other. Of course NV
[W.C.'s] preference is really irrelevant. [N.C.'s] reference the Court finds is primarily because he enjoys mothe s very lax and 'lenient life and enabling [N.C.) to do pretty Imo whatever he wants. Interestingly, (A.C.) did express a preferepee to stay with his mother in Pennsylvania but did not appear it I.Vas a big deli if it was to go the other way. [A.C.] seemed flexible tmd the extreme 12 RECEIVED 10/11/2019 11:50AM 7178482777 BLAKE & SCHANBACHER 10/11/2019 11:S0 York Co Prothonotary 717 771 4828 NO.227 #014
circumstances of [N,C.'s] problems not only in the school but his behavior problems are so extreme that we have t order a schedule I
that is contrary to the children's preferences and tgierefore this factor is in effect neutral.
Factor number eight, the attempts of a par .nt to turn the child against the other parent. As we stated in fac or number one, mother seems to have engaged in a very subtle au d tacit attempt to have the children not have as good relationship vd 'di their father as they should and therefore this is also a factor in f vor of father_
Factor number nine is which party is mor likely to maintain a loving, stable, consistent and nurturin relationship with the children, adequately for the children's emotion al needs, Candidly but for the last several words of that farAor we would find that probably slightly in favor of mother. Agaln other has done some things very well. But [not] adequate for the children's emotional needs. Emotional needs take in a lot a things including behavior and mother has not maintained the prop r home and rules and discipline for the children's emotional needs nd therefore this factor actually has TO lean towards father.
Factor number ten is which party is more ikely to attend to the daily physical, emotional, developmental, ed catioual and special needs of the children. We're going to call at a neutral factor. Mother again has done some things very ell. But father seems to be able to take excellent bare of those c ildren during the summer and therefore it is a neutral factor.
Factor number 11, the proximity of the re idences of the parties was stipulated to I think if I remember co ectly it was 924 miles. Which will necessitate probably a lot of tb going back and forth to he by air but it also can be driven in a 2- ay Drive. In any event, it's a actor but it doesn't lean towards mo ar or towards father.
Factor 12, each parties availability to care for the children and make appropriate child care arrangements. B th parties have been able to do that just Lie and that's a neutral otor.
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Factor 13, level of conflict between the p es. And the willingness and ability of the parties to cooperate ith each other. The Court has read the exhibits, the e -mails and t xts and while a few of fathers communications were not as friend y as they should have been, there were times when mother didn't c en bother to respond to some of father's communications. Mo er seems to have many excuses for why the communications etween mother and father are so poor. And again we cannot say they is without fault but a lot of the problems with the comrnunic tions seem to be on the part of mother. Therefore, this is a factor it favor of father.
14th and 15th factor, drug and alcohol ab se and mental and physical condition, we [have) a stipulations tl at those are not issues and therefore they are not factors.
16 any other relevant factor. Again, we've dealt with all the factors and therefore that is not a factor."
Hr'gTr,, August 21, 2019 at 111-118
The Court believes that the record speaks for itself, and t rat the Court's
decision to award Father primary physical custody of the two (2) young st children was
necessary to promote the best interests and permanent welfare of the chi dren. However,
the Court would like to add that while the Court did consider Mother's namployment in
factor four, the stability and continuity in the children's education, faruil life, and
community life to be a neutral factor between the parties, the Court did ear testimony
that Mother lost her employment due to frequent tardiness to work cans d by Mother's
inability to get the children 10 school on time. Thus, the Court did not e Ted as a matter
of law and/or abused its discretion in separating the parties' three (3) m or children,
because evidence was presented at the custody trial indicating that corn ening
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circumstances existed in this case which warranted separating the chair. , and the
decision was nbt manifestly unreasonable, or the results of partiality, pr. udice, bias or
2. The trial court erred as a matter of law and/or airs d its discretion by awarding Father primary physical custody of the artier' trio youngest sons and in ign.aring the long-established, continuing relationship il)a hand between Jilother and the titre (3) children as the primary custodial parent since the parties' sepa 411011.
It is denied that the Court erred as a matter of law and/or abused its discretion by
awarding Father primary physical custody of the parties' two (2) young' st children and
ignoring the Jong-established, continuing relationship and bond between Mother and the
three (3) children as primary custodial parent since the parties' snparati
To the contrary, as stated above in the Court's recitation of the c stody factors
pursuant to §5328, Mother has done some things vary wellwith respect to her care of the
children, The Court acknowledges that the parties' oldest child, W.C. b s done and
continues to do very well in Mother's primary physical custody. The C urt does not
ignore or deny that there is a bond between the three (3) children and b een the
children and Mother. However, not all bonds arc healthy bonds. Speer cally, as stated
in factor seven (7) the well -reasoned preference of the child, the Court and that N.C,'s
reference to stay with Mother was based on the lax environment at Mot er's house and
that N.C. was free to do pretty much whatever he wanted, and he does, demonstrated
by him looking Mother out of her own house and breaking various obj is in the house_ 15 RECEIVED 10/11/2019 11: 50AM 7178482777 BLAKE & SCHANBACHER 10/11/2015 11:50 York Co Prothonotary 71? 771 462$ NO.327 /017
N.C. seems to place blame on others for his actions, like doing poorly school. Mother
likewise shifts blame from N.C, to any bystander nearby. Mother's ina lity to hold N.C.
responsible for his conduct and protecting him from the consequences o his conduct by
blaming others is not healthy. Additionally, the parties' oldest child, W C. will most
likely be going off to college after high school, and the children would e have to
transition to being separated at that time as well. The Court also ebsery d, as stated in
the recitation of the custody factors, that when interviewing the children N.C. and A.C.
appeared to have a closer bond with each other than they did with W.C. While the Court
is hesitant to separate siblings, given the facts of this case, the Court bel eves that it is
appropriate.
Therefore, the Court did not erred as a matter of law and/or abus d its discretion
by awarding Father primary physical custody of the parties' two (2) you gest children,
and the Cotut did not ignoring the long-established, continuing relation rip and bond
between Mother and the three (3) children, because the decision to sepa ate the three (3)
children was supposed by the evidence presented at trial and not the r -- It of
unreasonableness, or partiality, prejudice, bias or ill -will on the part of e Court,
3. The trial court erred as a matter of law and/or abus d its discretion In dismiSsint the clear preference expressed by the zree (3) minor children to remain in Mother's primary physical a Cody and in failing to afford the children's preference in appro late weighi in its discretion to separate the siblings and transfer C ody of the parties' Iwo (2) youngest sons to Father who reside in the State of Alabama.
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It is denied that the Court erred as a matter of law andior.abused 'ts discretion in
dismissing the clear preference expressed by the three (3) minor childr to remain in
Mother's primary custody and it is further denied that the Court failed t afford the
cliildren's.preference the appropriate weight in its discretion to separate he siblings.
Factor seven (7), the well -reasoned preference of the child pursuant to § 328 means
plainly what it states: the well-reasoned preference of the child. While be Court
believes that WC., the parties' oldest child's reasons for wanting to stay in Mother's
primary physical custody and not be separated froM his brothers is wail - easoncd,W.C.
did tell the Court that N.C. was a "difficult sort of kid." Tr., Augtt t 16,2019 at
116. Moreover, since W.C.'s custodial position was not changing, his p demon has
little to no weight in the overall evaluation of the children's preference. s previously
Stated above, N.C.'s preference to stay with Mother the Court did not be eye was well -
reasoned, but rather based on the fact that Mother could not control him rid allowed him
to de whatever he pleased at Mother's home. Finally, the Court found .C. is preference
to be somewhat passive. AL. expressed a desire to stay in Mother's pri ary physical
care, but could have easily transitioned to Father's home as well, Thus, e Court did not
erred as a matter of law and./or abused its discretion in dismisSing the el ar preference
expressed by the three (3) minor children to remain in Mother's primary custody, because
the children's preferences were not well -reasoned and the Court gave th children's
preference the appropriate weight it deserved in weighing the custody fa tors,
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4. The trial court erred as a mailer of law and/or abus its discretion in its analysis of the factors sotforth. in 23 Pa. C.S. 5328(a) (relating to the custody factors) and 23 Pa. C.S. §53 7(h) (relating to the relocation factors) and, therefore, erroneously d tertnined that Father should have primary physical custody of the ladies' two (2) youngest children and in granting Father's request or relocation to the State of Alabama.
It is denied that the Court erred as a matter of law and/or bused its
discretion in its analysis of the factors set forth in 23 Pa. C.S, §328(a) a d 23 Pa. C.S.
§5331(h). The Court presents that the evidence and testimony presented at the custody
trial adequately provided the basis for the analysis of the custody factors set forth in 23
Pa. CS. §5329(a). Such evidence and testimony can be found in their a tirety in the
custody record regarding this matter. Additionally, the Court stated at e custody trial
that it did not consider relocation to be applicable to this case, because " a do not have a
parent relocating, I'm relooating the children." Hr'g Tr, August 21, 20 9 at 1 I I.
Neither party objected at the time of the custody trial to the relocation fa tors not being
addressed, nor had either party objected to the issue of whether or not a olocation had
even occurred. Therefore, the Court did not err as a matter of law and/or abused its
discretion in its analysis of the factors set forth in 23 P. CS, §5328(a) and 23 Pa. C.S.
§5337(h), because the evidence and testimony presented at the custody trial set forth the
basis for the Court's analysis of the custody factors under §5328(a), and the relocation
factors under §5337(h) were not applicable in this matter.
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CONCLUSION
After review of the record and for the foregoing reasons, the Co rt hereby
reaffirms its Order entered on August 28, 2019.
BY THE C URT,
N. H crs; SCE